With an eye toward a quick Supreme Court nomination, President Barack Obama spent part of his busy week talking with Senate Judiciary Committee members and even some of the candidates in the hunt to replace retiring Justice John Paul Stevens.
He hasn't yet had any formal interviews, an administration official the Associated Press, but clearly the end-game is underway. The president met face-to-face last year with four candidates before selecting Sonia Sotomayor to replace Justice David Souter.
Our history books would be richer indeed if these conversations — part job interview, part constitutional nicety, and part awkward inter-branch intimacy -- were recorded for posterity. We know, for example, that President Obama was impressed with Sotomayor's "personal" story and personality, but wouldn't you like to have been in the room when they talked? Not just to prove or disprove the existence of a litmus test, but to have seen the interaction and their discussion of the role of the law in American life.
We'll never get public access to those private moments. And we probably shouldn't. With exceptions, presidents over the past half century have nominated honorable, bright, moderate jurists to the High Court. You may only tolerate, as opposed to admire, the process by which the Senate confirms a president's Supreme Court nominations. But the results, politicized though they may be, are nothing we ought to be ashamed of. Stevens, in other words, is the rule and not the exception when it comes to the tone and tenor of the Court's essential sense of decency.
With his background in constitutional law, President Obama no doubt is better prepared than many of his predecessors to conduct these Supreme Court interviews. Maybe the president has even pulled the same trick on his candidates that then-Senate Judiciary Committee Chairman James O. Eastland of Mississippi pulled on Sen. Edward M. Kennedy of Massachusetts way back in 1962 when the latter came to the former's office on Capital Hill. As recounted by Kennedy in his book, "True Compass," Eastland kept pouring scotch into Kennedy's glass until the committee assignments had been handed out to the junior senator from the Bay State.
Whether or not the president is pouring a cocktail or two to loosen up the conversation, there are a few overarching legal questions that any responsible president would want to ask of the person he were about to appoint to a life-tenured position with the power to overrule him on constitutional interpretations. And, unlike members of the Senate Judiciary Committee during their hapless confirmation hearings, the president would have a reasonable likelihood of getting a substantive and revealing answer to his questions.
Here are the nine question-areas I would kill to hear candid answers to from the current crop of so-called Supreme Court shortlisters. I've purposely left off all of the old, familiar questions about abortion rights or gun rights or presidential power or legislative oversight. I've left out the assisted-suicide question and the medical marijuana question and even all of the many questions left unanswered by the Court so far in the legal war on terrorism. All of the candidates have significant public records about their views. I know their minds are sharp. I want to try to get some insight into hearts, souls, and character. Touchy-feely? You bet. But unusually revealing as well, no?
Tell me specifically about a time in the past five years when you have used your legal background and training to help someone you didn't by law or policy have to help? Why did you do it? Which skills did you use? How frequently do you do this? I ask this because I want to know how this judge expresses empathy within the law.
Tell me about why you went to law school and what you liked and did not like about it? What lessons did you learn then that still impact your own theories about American law? Who were your three favorite professors and why? Decades later, many judges and lawyers still have vivid memories of the men and women who first introduced them to the law.
You really are what you read.
What court ruling, legal decision, or other law-related written work are you most proud of and why? How have your views changed since you wrote it? What would you change in it if you were to write it now? Stevens is an excellent example of a humble judge who never stopped learning or listening or testing assumptions. We need more people like that on the Court.
What is your position on the proliferation of judicial elections at the state level in America? Do you believe they diminish the stature of local judges and, if so, what would you suggest to supporters of such elections who believe they ultimately generate more malleable judges? Judicial elections are a scourge upon the nation. Any Supreme Court candidate who thinks they aren't destroying faith in the judiciary doesn't deserve to sit as a Justice.
What would you be willing to do to better open up the Supreme Court's public work to the public? Would you be willing to permit cameras for oral argument? Would you be will willing to permit live audio coverage? If not, please explain to me why you believe the Court's work should remain so sequestered. It's 2010. It's time for the Court to open itself up to real-time public access for the millions of Americans who still care.
What do you think of the phrase "judicial activism," and why, and are you aware of the comments made about it over time by Justice Sandra Day O'Connor and Chief Justice William Rehnquist? In the past 10 years, can you name me a Supreme Court ruling that you believe constituted "judicial activism?" See, above, Judicial Elections.
If you were the president or the chairman of the Senate Judiciary Committee, what would you specifically propose to do to improve the atrocious state of lower-court confirmations on Capitol Hill? And (if the candidate is a judge) what specific experiences can you share about the shortage of federal judges all over the nation? Only a tiny fraction of all cases make it anywhere near the Supreme Court. The real logjam for litigants is down below, at the trial court and intermediate appeals court levels.
I'm sure you will tell us all in great detail later which Supreme Court Justice of the past you would like to emulate in doctrine or demeanor. What I would like to know now is which Supreme Court Justice of the past would you like to forget and why? What lessons do you take from the biographies and histories of the Court's most important tribunes? Whose mistakes do you want to learn from if you get the job?
There you go, Mr. President. Nine questions about a job that gives nine otherwise ordinary people extraordinary power over our lives. Hope you get more candor and detail out of your candidates than the Judiciary Committee is going to get out of your nominee.