Wednesday, May 27, 2009

The Smartest Supreme Court Choice of All

President Obama's smartest move on the Supreme Court would be to choose someone smart. The court is losing an articulate champion, and it needs a strong new voice - not just a vote - as balance.

Can Sonia Sotomayor out-reason Justice Scalia? More important, can she convince other justices, and other Americans, of her views?

Some liberals say that even asking the question is sexist or racist, though none of the other minority candidates, from Elena Kagan to Harold Koh, drew fire for perceived lack of intellect. And it's a good question to ask. A judge in the spotlight of history must be able to make not just the right decisions, but also convincing arguments.

Supporters of Sotomayor say the doubt is misplaced; after all, she went to Princeton and then Yale Law. But if a school record guaranteed intelligence, we could count on brains from anyone who attended Yale and Harvard, like our previous president. 

So what is a better measure?

Here are three good  yardsticks of intelligence:

First, an articulate speaker is a good sign. While some smart people can't express themselves well in words, you might consider it a requirement for a Supreme Court justice, who must convince a nation of the soundness of each judgement. Sotomayor's wooden reading of her dull acceptance speech doesn't bode well, though she may yet surprise us.

Second, the ability to see the implications of a choice matters greatly. Sotomayor will get grilled on her upholding of Ricci, the New Haven firefighter denied promotion when no minorities passed the advancement test. Whether the verdict is sensible or not, the opinion was a single, anemic paragraph - wholly unacceptable for a divisive, sensitive issue. She upheld the case but settled nothing.

Which brings us to the final yardstick for intelligence:  the ability to place decisions in the context of the most important principles.  Any tough decision has several principles in conflict, as does the Ricci case above. On the one hand, you want to promote someone who has earned the position, yet on the other, you want to encourage success for anyone of merit. A judge needs to define which principles are affected by each choice, preferably in a convincing opinion.

It's exceptionally easy to let lazy thinking overwhelm such reasoning. Even Antonin Scalia does it, as when he said,

'I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?'

While I actually agree that fair treatment varies with context, I've never railed against 'judicial activism,'  the interpretive reasoning applied by judges for such cases. Scalia hates it or endorses it, as the need suits him.

Would Sotomayor stand up to this inconsistency? Would she be convincing?

Look at this summary of her skills from today's Times:

Judge Sonia Sotomayor's judicial opinions are marked by diligence, depth and unflashy competence. If they are not always a pleasure to read, they are usually models of modern judicial craftsmanship, which prizes careful attention to the facts in the record and a methodical application of layers of legal principles.

That's another frightening sign of a mediocre mind,  however well-disciplined. Precedent matters, but so does sound reasoning. Look at these two smart opinions from Souter, one 'liberal' (attacking a death-penalty requirement) and one 'conservative' (setting limits on minority activism):

He dissented in a 5-4 ruling when the Supreme Court upheld the right of Kansas to require the death penalty in an unusual tiebreaker arrangement:

'A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.'

Yet he also wrote the unanimous court ruling that St. Patrick's Day parade organizers could refuse to include a troop promoting gay rights. Look at how well he recognizes value in both sides, and how clearly he places the priority:
'While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message, or discouraging a disfavored one, however enlightened either purpose may strike the government. ...'

Souter's elegant phrasing applies to all such cases, regardless of political bent; gay rights parades are not required to make room for a troop from the religious Right, nor must the NAACP provide a marching slot for the local Klan. Sensible, yes?

I'm skeptical that Sotomayor would be so clear.

But perhaps she'll convince me.

This post comes today for timely reasons, replacing next Monday's column. I'll post again the following Monday.

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