Should Appointment to the Supreme Court Hinge on Empathy?

First published on BlogCritics on 6 May 2009

The United States Constitution is silent as to the qualifications of Supreme Court justices. An illiterate ninety year old citizen of North Korea suffering from senile dementia and on life support could, consistently with the Constitution, be nominated by the President and approved with the advice and consent of the U.S. Senate. Fortunately, that seems quite unlikely to happen; in any event, there being none, this article is not about the Constitutional qualifications of Supreme Court justices.

Recently, President Obama indicated that in deciding upon a nominee to replace Mr. Justice Souter, he will look most closely at those who are unusually empathetic, probably toward whatever groups he has in mind. I assume that's what he means, because most everyone is empathetic toward someone or some group, but most have more empathy toward some than toward others. I assume that he will not look for someone with great empathy toward the Klu Klux Klan or even Tea Party proponents.

President Obama is being urged to lean more toward "empathy" than experience by some of the higher-ups in his party.

Some of the senators who will conduct confirmation hearings for Justice David Souter's replacement think it's time for a nominee who hasn't served on the federal appeals court. For all nine of the current justices, the appeals court was a final stepping stone to the Supreme Court.

"I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.

It appears that President Obama feels much the same way:

He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.

As White House press secretary Robert Gibbs put it, Obama is looking for "somebody who understands how being a judge affects Americans' everyday lives."

Not really coming to grips with the idea of "empathy," Oliver Willis in an article in Huffington Post and probably elsewhere, opined that President Obama should nominate a "liberal," more than likely meaning "leftist," and with sufficient Democrats in the Senate, his appointee will be approved.

We need someone who is solid as a rock on civil rights, right to choice, limits on corporate power, and an overall progressive viewpoint on the Constitution, our laws, and the overall role the court has to play.

My gut says that President Obama understands all this, and the last 100 days have led me to believe that at the end of the day his choice will fit the bill.

Thomas Sowell, writing here and here  as well as elsewhere, disagrees.

That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Before attempting to discuss the impact of "empathy," and left-right orientation versus judicial experience, it seems useful to attempt to define the rather different jobs of lawyers, of academic types, of Federal appellate court judges and of Supreme Court justices. Surely, we need to have some idea of what these folks are expected to do in order to decide what their qualifications should be.

Much of the work done by the Supreme Court is quite similar to the work done by other Federal appellate courts. The main difference is that the Supreme Court can overturn the decisions of lower Federal (and sometimes, State) courts, while only the Congress and the President, acting together, can nullify a decision of the Supreme Court. The Supreme Court can overrule its own past decisions, but rarely does so directly. Unlike decisions of the lower courts, Supreme Court decisions become, at least for a while, the "law of the land." Although a decision by, for example, the Court of Appeals for the Fifth Circuit, becomes the law of the land in so far as all lower Federal courts within the Fifth Circuit are concerned, it does not bind the Federal courts in the other circuits. One of the fundamental reasons for the Supreme Court to take a case is a split among the Federal circuits; when it does so, what it says, provided it is not "dictum" (extraneous language unnecessary to its decision) binds the Federal courts in all circuits. The Supreme Court thus can have far greater impact on the United States as a whole than can any other court in the land.

In deciding the cases before them, Federal appellate courts are charged with resolving at least some of following issues:

Factual Matters.

Appellate courts rarely overturn the fact findings of trial courts except when those findings are egregiously inconsistent with the record below, are based on things erroneously admitted in evidence, or fail to take into account things improperly excluded from evidence.

The Meaning of the Statute or Statutes Involved:

Many appellate cases involve some element of statutory interpretation. Some statutes are clear on their face, and some are not. In the absence of appropriate clarity, a court must decide what the statute was intended to mean when enacted. There is some latitude here, but not much; that latitude does not properly extend to consideration of what the statute would probably mean if more recently enacted, or what it should say were it to be passed now. To divine the meaning of a statute, courts look at its history and at what other courts have said it means. If one reasonable interpretation would raise a serious question of its constitutionality and another reasonable interpretation would not, a court will generally prefer the latter: Constitutional issues are generally sought to be avoided to the extent possible. Sometimes, a court will have to decide whether a statute was applied consistently with its legislative history, otherwise reasonably and, occasionally, "fairly." Occasionally, it is also necessary to determine whether the statute was applied in an unconstitutional way.

Constitutional Issues.

There may be some automobile mechanics who would prefer to rebuild an engine than merely to replace the spark plugs, because they can earn more money that way. If they earned the same amount of money, the great majority would probably prefer simply to change the spark plugs, even if they might enjoy the challenge of an engine rebuild. Few of the vast number of cases arriving for appellate review raise substantial Constitutional issues, and there are fewer in which such issues cannot be got around; that is what courts generally try to do. However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies -- and now, possibly, the empathies -- of the judges may come into play.

The criterion I consider most important for a Supreme Court justice is experience, as an appellate court judge. All of the current justices served as Federal Court of Appeals judges; I do not know of any recent prior justice who did not serve a similar apprenticeship. The Supreme Court is not a suitable place for the sort of on-the-job training which would be essential for a new justice lacking experience as an appellate court judge. In my view, it is an even worse place for on-the-job training than the White House. At least the President has cabinet members and others to advise him, and at least some of them have relevant experience. A Supreme Court justice has only his clerks to do his grunt work. He can discuss cases with them and with his brother justices. Beyond that, he is pretty much on his own. Without appellate court experience, a justice would most likely be lost. For one of the nine justices of the most powerful court in the country, lost is a bad place to be.

I do not think that experience other than as an appellate court judge is adequate. Even extraordinarily broad, lengthy and excellent experience as an advocate is not very helpful; indeed, it can be harmful, since the functions of judges and of the attorneys practicing before them are very different. Attorneys representing clients have an ethical obligation to do their best to present compelling arguments for the views of the law and of the relevant facts most favorable to the private (or, some cases, public) interests of their clients. They come to a case with their minds made up as to the desired result. It is not their function to ponder whether the greater good for humanity might result were the other side to win.

Unlike attorneys functioning as advocates for their clients, judges and justices do not have clients whom they have an ethical duty to represent as best they can. Their proper function is to uphold the law, regardless of
whether as legislators they would have voted for or against it. They also have an obligation to follow legal precedent as established by the judges at courts superior to their own. If a superior court has held that a statute is unconstitutional or otherwise unenforceable, they are bound by that decision, like it or hate it. One of Thomas Sowell's excellent articles linked above and also here points to the views of one of our better justices, Oliver Wendell Holmes.

After voting in favor of Benjamin Gitlow in the 1925 case of Gitlow v. People of New York, Holmes said in a letter to a friend that he had just voted for "the right of an ass to drool about proletarian dictatorship." Similarly, in the case of Abrams v. United States, Holmes' dissenting opinion in favor of the appellants characterized the views of those appellants as "a creed which I believe to be the creed of ignorance and immaturity."

Mr. Justice Holmes did exactly what, in my opinion, an unelected Supreme Court justice should do. He did not attempt to usurp the proper functions of the elected Congress or of the elected President by legislating to substitute his views of the world for theirs.

Nor, in my view, is academic excellence likely to be adequate preparation in the absence of experience as an appellate court judge. It is one thing to teach about the law, quite another to practice law as an advocate, and as noted above, practicing law is quite different from being a judge. Many law professors have profound knowledge of specialized areas of the law and of legal philosophy. Neither is adequate. By analogy, a professor of aeronautical engineering may know all that there is to know about wing design and how to achieve maximum engine thrust without increasing engine weight or fuel consumption. Indeed, he may know how to design an entire airplane. That does not mean that he would be a desirable pilot to fly a large commercial aircraft full of passengers from Washington, D.C. to Denver, Colorado; for that, an experienced airline pilot with years of experience as a copilot would be desirable. An aeronautical engineer with experience of that sort might become a good pilot, but there is no particular reason to assume that he would. Unlike an academic or an aeronautical engineer, the guy flying the airplane needs be make very important split second decisions, and the only way of which I am aware to learn that skill is through training in the real world environment.

A good judge is first and foremost a good technician. So is a good surgeon. It is not the function of a judge or of a surgeon to decide what to do based on his empathies or how he may feel about the class of persons whose dispute he is resolving or whose life is in his hands. It is the function of the elected Congress to decide whom the laws it passes should benefit or harm, and it is the function of the elected President to sign or to veto those enactments. Then, it is up to the unelected courts to decide whether the laws as enacted comport with Constitutional and other requirements, without regard to personal views as to their wisdom.

We all hope that all Supreme Court justices will be wise, insightful and diligent in their jobs. Although I would prefer President Obama to appoint a "conservative," I would much prefer a "liberal" with substantial experience as an appellate court judge to a "conservative" lacking such experience.