What Matters Most In A Nominee?


By:  Senator Patrick Leahy

One of the most frequently asked questions after the announcement of a Supreme Court vacancy is about the attributes that should matter most to the president in choosing a nominee.

With the coming retirement of Justice John Paul Stevens, it's difficult to think of any better model than Justice Stevens himself — a superb and influential jurist, a man of great decency, and the last justice from the "Greatest Generation" that carried the nation through the Second World War.

The choice of a Supreme Court nominee is one of the most important decisions any president can make. 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.

Having proven qualifications and understanding of constitutional law is a must, and experience is always a consideration. But 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 ordinary 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. 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.

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 hardworking Americans.

As President Obama prepares to select a nominee, he is continuing his practice of reaching out to both sides of the aisle. I am looking forward to the meeting he has called us to on Wednesday. Then, and in any private discussions, I will begin by suggesting that he pick someone who approaches every case with an open mind and a commitment to fairness. Someone who will heed the Vermont marble inscribed above the entrance of the Supreme Court which pledges "Equal Justice Under Law."

Someone like Justice John Paul Stevens.

Sen. Patrick Leahy, D-Vt., is the chairman of the Senate Judiciary Committee.