On Choosing A Supreme Court Nominee

By:  Senator Patrick Leahy

President Obama is about to make one of the most important decisions any president can make: choosing a Supreme Court nominee.

Next it will be the Judiciary Committee’s turn to evaluate the nominee’s qualifications and to hold public hearings, and then it’s the Senate’s turn.  Casting a vote to fill a Court vacancy is one of the weightiest decisions any senator will face.

The retiring Justice, John Paul Stevens, in many ways is the model of what a Justice should be – a superb and influential jurist and a public servant of great decency.  He is the last Justice from the “Greatest Generation” that carried the nation through the Second World War.  A year before he died, President Gerald Ford wrote this about Justice Stevens:  “…I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court.”  What a tribute, and what an enduring legacy.  No doubt every president would want to be able to say that about the quality of his Court selections.

What factors should be considered in choosing his successor on the Court?  At the President’s request I have privately offered my advice, as have others.  Beyond the qualifications of a nominee’s academic and life experience, and a sound understanding of constitutional law, the country also needs and deserves a Justice who will make decisions based on the law and the Constitution, not politics or an ideological agenda.  A recent pattern has emerged of Supreme Court decisions by a slim, sometimes activist, majority. These opinions have not followed the law but have overridden congressional intent and misconstrued laws designed to protect everyday people, tilting the scales of justice in favor of corporate rights and against the rights of individual citizens. 

Five Justices on the nine-member Court have rewarded employers who covertly discriminate against their workers in pay discrimination cases.  Five Justices have made it more difficult to prove age discrimination in the workplace.  Five Justices gave Exxon Mobil a $2 billion windfall by reading into the Constitution a protection for corporations that simply does not exist, greatly reducing the oil giant’s liability for the damage done by their oil spill.  And five Justices have opened the floodgates to corporate campaign contributions in a decision that threatens to drown out the voices of ordinary citizens in the political process.

These decisions conferring rights on corporations remind me of the long-discredited legal doctrines used by the Court a century ago to tie Congress’ hands from protecting the American people.  At that time before the New Deal, the Justices substituted their own views of property rights to strike down laws such as those guaranteeing a minimum wage, outlawing child labor and protecting against contaminated food.  Those dark days, when the Court elevated the property rights of corporations above the ability of Congress to protect Americans, are long gone and better left behind.  We should not bring them back.

Does it matter who is chosen and confirmed to sit on the highest court in the land?  Decisions like these show how much it does matter, to every American.

I would also like to see a nominee who reflects Justice Stevens’ reverence for the Supreme Court as an institution.  In many of his most historic opinions, Justice Stevens lamented that the Court’s divisive rulings would begin to shake the public’s confidence in it.  I share his concern.  Over the past two years, the Judiciary Committee that I chair has shed some light on these decisions by examining them one by one in our hearings.

And one practical lesson from these hearings is the clear evidence of the importance of every Justice’s vote on the Supreme Court. 

The law is not a game to be played or a puzzle to be solved.  The law is intended to serve the people -- protecting the freedom of individuals from the tyranny of government or the mob, and helping to organize our society for the good of all -- not the other way around.  No Justice should substitute his or her judgment for that of Congress to undermine protections for everyday Americans.

One way to gauge the President’s choice is to apply this test:  Is this a person who will approach every case with an open mind and a commitment to fairness?  Can every American feel a sense of trust about the decisions this nominee will cast on cases that affect our constitutional rights and freedoms, and the blessings we enjoy and the struggles we face in our daily lives? 

Is this a person who savors and honors the words chiseled in the Vermont marble above the entrance of the Supreme Court? 

Those are the words which pledge, “Equal Justice Under Law.” 

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[Senator Patrick Leahy (D-Vt.) is the chairman of the Senate Judiciary Committee.]