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Archive for May 31st, 2009

This will be my column in Monday’s Gazette:

When presidents nominate new justices for the Supreme Court, people who care about courts project their hopes and fears onto judges most of them have never heard of.

From the special interests and from the extremes of our political spectrum, we hear caricatures about empathetic or activist judges. And we really don’t have a clue what the justice will do.

Here’s the truth: Presidents (as well as governors) nominate people for the Supreme Court who they believe will be good justices, interpreting and applying the law and the Constitution honestly. They also nominate people they hope will reflect their own political philosophy. They have a better track record on the first score than on the second.

I don’t know how Sonia Sotomayor will work out as a Supreme Court justice, presuming that she wins confirmation. And neither do all the liberals hoping she will be empathetic or all the conservatives who think that “identity politics” play a role in her selection but were irrelevant in the selection of the 108 white male justices who have preceded her to the court.

Do you suppose that when Gov. Terry Branstad appointed Marsha Ternus and Mark Cady to the Iowa Supreme Court that he anticipated someday Cady would write and Ternus would join a unanimous decision overturning Iowa’s ban on same-sex marriage? I think we can be sure he didn’t. He appointed them to interpret the Constitution and they did that faithfully.

Do you think that when liberal icon John F. Kennedy appointed Byron White to the court that he thought he would become one of the most conservative justices? Or that Republican Richard Nixon thought Harry Blackmun would be one of the most liberal?

I do know that lots of anti-abortion voters campaigned hard for Ronald Reagan and the elder George Bush, based on Republican platforms committed to appointing justices who would overturn the 1973 Roe v. Wade decision that legalized abortion. And by the time Roe came up for review by the court in the 1992 Planned Parenthood v. Casey case, Reagan and Bush had appointed five of the nine justices on the court. Add in the fact that the original two Roe dissenters, White and William Rehnquist, remained on the court and this looked like a 7-2 reversal of Roe.

But two Reagan appointees, Sandra Day O’Connor and Anthony Kennedy, and a Bush appointee, David Souter, joined in a 5-4 decision affirming Roe. Put simply, a majority of the Reagan-Bush appointees voted to uphold Roe, and if even one of them had voted the other way, it would have been overturned.  

Keep this in mind as you read and listen to the various projections of Sotomayor as a Supreme Court justice. The truth is that we never know and people from either end of the political spectrum who try to fan hopes and fears are doing so from speculation and ignorance.

Justices, like all people, change and grow through the years. However long a justice serves, we can count on two things: He or she will rule on some issues we can’t now anticipate and a justice at the Supreme Court level is not bound, as appellate justices are, to follow earlier rulings of the Supreme Court.

Presuming she is confirmed, Sotomayor is young enough that she probably will spend the next 20 years or more ruling on the laws of our land. If you know how she will rule on issues we can’t now anticipate, you are either truly wise or, more likely, truly foolish.

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