Sunday, May 24, 2009

President Barack Obama’s Criteria for Justice of the Supreme Court

5/24/2009--When President Obama describes his criteria for a Supreme Court nominee, he is also describing his understanding of the role of a Justice and of the Court. This is how the New York Times today described President Obama’s criteria.

• President Obama, who has often cited intellect and empathy as qualities he wants in a Supreme Court nominee, said in a television interview broadcast Saturday that he was also looking for “somebody who has common sense and somebody who has a sense of how American society works and how the American people live.”

In the interview, the president, who taught constitutional law at the University of Chicago before coming to Washington, suggested that he prized real-world experience and a common touch as much as scholarly thought in seeking a successor to Justice David H. Souter, who is retiring.

“What I want is not just ivory tower learning,” Mr. Obama told Steve Scully, the C-Span political editor, who conducted the interview on Friday in the White House library. “I want somebody who has the intellectual firepower but also a little bit of a common touch and has a practical sense of how the world works.”

Now contrast this description with what a Justice Scalia would say should be criteria for a judge—technical legal skills such an analysis of precedent and history. A feel for the country would not be Justice Scalia's main interest.

How would a liberal theorist describe the needed qualities? Ronald Dworkin did this recently in the New Review of Books. He wrote of interpretation of the Constitution as a moral theory.

President Obama’s approach, in contrast, seems to envision the Court as a part of a democratic government, with some responsibility for democratic legitimacy. Plenty of people would see that as a threat to minority rights, if they took President Obama seriously. Perhaps they do not. But I am beginning to think that he means it.

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