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Filling Supreme Court Vacancies

By Edward Zelinsky

When President Bush nominated my law school classmate Circuit Judge Samuel A. Alito, Jr., to the U.S. Supreme Court, I supported Judge Alito’s confirmation to the high court. Now that President Obama has nominated Circuit Judge Sonia Sotomayor to the Supreme Court, I favor her confirmation as well. To those who view the Supreme Court primarily as a forum for partisan struggle, this conclusion will seem anomalous. To those concerned about the rule of law, this conclusion will seem compelling.

In earlier times, Presidents reached across party lines in making Supreme Court appointments. President Truman, for example, appointed to the Court Senator Harold H. Burton of Ohio, a Republican. President Eisenhower similarly crossed party lines to nominate to the Supreme Court Judge William J. Brennan, Jr., a New Jersey Democrat. In today’s environment, such bi-partisan appointments are inconceivable.

When President Bush, with a Republican-controlled Senate, confronted a vacancy on the Court in 2005, the realistic expectation was that he would appoint a professionally qualified Republican. Judge Alito easily met that criterion and was properly confirmed by the Senate.

I supported Justice Alito’s confirmation not because I concur with every decision he has made or is likely to make. Indeed, I have disagreed with several of (now) Justice Alito’s decisions, most recently, District of Columbia v. Heller in which the Court read the Second Amendment as invalidating a gun control law of the District of Columbia. I supported Justice Alito’s confirmation because of his professional distinction, not because of his political ideology.

Similar observations apply to Judge Sotomayor. I will not agree with every decision she will make on the high court. Indeed, I disagreed with her participation as an appellate judge in Ricci v. DeStefano, which invalidated New Haven’s promotional examination for firefighters because too many white males passed the test. Recently, a five justice majority of the Supreme Court concluded that, indeed, Ricci was wrongly decided.

However, the relevant question is, given the pool from which Barack Obama will appoint Supreme Court justices, did the President pick a lawyer who is professionally qualified to sit on the nation’s highest court? By that criterion, Judge Sotomayor passes muster.

There are commentators, many quite distinguished, who find naive an emphasis upon a judge’s professional credentials. From their vantage, the Supreme Court has been and will continue to be nothing more than a cockpit of partisan struggle. Concern about professional qualifications is, from this vantage, at best unsophisticated, at worst a smokescreen for other agendas.

I respectfully suggest that it is those commentators who are indulging in naivete. President Bush in 2005 was going to place a conservative Republican on the Supreme Court. Similarly, in 2009, President Obama will place a liberal Democrat on the Supreme Court. Given those political realities, the question becomes whether the President, in satisfying his political imperatives, has nominated to the Court a professionally qualified appointee.

The professional qualifications of judges matter because of the role the courts play in our national life. Courts are where Americans go for the fair, principled application of law administered by a judge who is guided, not by the identity of the parties, but by legal norms and standards. All too often, the reality falls short of this ideal. Nevertheless, this ideal is an important part of America’s self-image and of our success as a nation: We believe in the rule of law. Our judges should thus be more than partisans. They should be legal professionals in the best sense of that term, knowledgeable, hardworking craftsmen who seek to administer the law in a fair and principled fashion. This commitment to professionalism should start with the judges at the pinnacle of the legal system.

To be sure, judges, particularly Supreme Court justices, are also policymakers. Many of the cases reaching the U.S. Supreme Court are there because conventional legal reasoning does not resolve them. Consequently, much of what the Supreme Court does entails choices of policy and political philosophy.

It is accordingly appropriate for Judge Sotomayor’s confirmation hearing to focus, not just on her professional credentials, but upon the substantive issues she will address on the Supreme Court. Supreme Court confirmation hearings (a relatively recent innovation in our constitutional history) have become an important and legitimate part of our national conversation – though I would urge the Republicans to approach this hearing with greater civility than many of his Democratic interlocutors brought to Justice Alito’s confirmation process. Judge Sotomayor’s hearing should be a dialogue befitting constitutional principles, not a partisan slugfest.

In short, I was for Sam and now, for the same reasons, I’m for Sonia.


Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.

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