My preference for the next justice of the Supreme Court, the person to fill the slot of retiring Justice David Souter, is someone like William Bloss, of Bridgeport's Koskoff, Koskoff & Bieder, or perhaps a young version of New Haven's David Rosen. These are brilliant men who have earned their livelihood in courtrooms representing ordinary people in extraordinary situations.
But I know my preferences are unlikely to be fulfilled, at least this time around. The Obama administration is only months old. It takes time to make a new mold. My hunch is that this pick will come from among the ranks of academics and appellate court judges -- the familiar sources of high-fallutin' judges.
If that must be the case, the president can at least do us the service of ignoring the likes of the legal interest groups and their shills. We don't need a candidate sliced, diced and vetted by the likes of the Heritage Foundation or Jeffrey Rosen of The New Republic.
Rosen wrote a silly piece this past week about the Second Circuit's Sonia Sotomayor. She's not up the challenge, he writes. This based on the whispering comments of former clerks and judges. Rosen dissects, no doubt with the aid of some behind the scenes interest group, a footnote or two from a decision in Sotomayor's past to suggest that while she's plenty smart, she's not at the front ranks of the law's brain trust. (Hint: Do only originalists need apply?)
I do not know if Rosen has ever appeared in a courtroom to argue a case. I have appeared before Sotomayor a bunch of times. She is smart. She is incisive. She is, in temperament and demeanor, the Second Circuit's answer to Antonin Scalia. I would love to see the two of them at oral argument. The bad boy of the bench would have a counterweight.
The Heritage Foundation is also weighing in on the replacement of Suitor. It has more class than Rosen. Anonymous ad hominem attacks are replaced by seeming intellectual architecture. But even the Heritage Foundation sounds silly.
The Foundation is wary of a judge with empathy. Such a judge might be an activist. Originalists are good, you see; activists are bad. These tired old interpretive canons don't carry much weight. Originalism is a form of intellectual activism. It took a movement, the Federalist Society, to make it a creed.The extraordinary growth and dominance of this creed is less a function of its being right in any philosophic sense than it is a reflection of its serving the interests of those who find solace in constitutional necromancy. Originalism finds justification for the status quo in reverence for the past and must somehow find accord with our three-fifths of a president.
Much will be made in the weeks and months to come about judicial philosophy. What intellectual commitments has a potential justice made before he or she hears a particular case? What vision of the good? What social philosophy? What a priori commitments reflect the bias a jurist brings to bear on the raw data of a case? Pass my litmus test, the interest groups say, if you want to serve. Each interest group has a test and each, left or right, knows what the law requires.
I don't trust a one of them. All have sinned and fallen short of the true glory of the law.
The law is nothing more and nothing less than a set of legal doctrines born in conflict and tested by experience. The cases or controversies that animate any law suit summon the creativity of advocates. What factual issues are at the heart of the dispute? What legal doctrines best shed light on those issues? What precedent suggests that the law favors one side or another? There is no Platonic architecture lurking in the shadows. There never was and most likely never will be consensus on a vision of the good society among lawyers and judges. We are merely tools in others' struggles. The law is not ideology, and when it attempts to become ideology it is little more than farce. Hence the silly credal chatter of those who say originalism is liberty's best defense. When law professors spout "theory" and "philosophy" head for the doors. Few are supple enough to handle fire without getting burned.
President Obama is right to seek a justice with a pragmatic sense of empathy. Such a justice will have no commitments extending beyond an honest response to the law and facts presented in open court. Such a judge may not always do the ideologically correct thing in the eyes of one group or another. Such a judge may, indeed will, disappoint the expectations of litigants in one case or another. But such a judge can be trusted.
There is but one way to acquire empathy: experience. And this experience can come in two forms: work or life history. I am wary of Sonya Sotomayor's work history. A former prosecutor and then a judge for a long, long time. I would prefer a trial lawyer.
But she comes from the right side of the tracks. Her father died when she was a child. She has suffered with daibetes. She was raised by a single mother. She was reared in a housing project. She comes from the world most American's inhabit. I doubt she has forgotten the other America even as she has acquired power and presitige.
