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Whither the Supreme Court

American Bar Association, The Journal of the Section of Litigation
Robert E. Shapiro

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

The nomination hearings of Elena Kagan to serve as a Justice of the United States Supreme Court provoked the usual amount of commentary on whether the nominee did or did not have the requisite attributes for serving on that august body. Too bad so much of the discussion was rubbish. Despite the heavy intoning about the sanctity of our Constitution, and the need for the right judicial "philosophy," very little serious attention was actually paid to what the Constitution is or what a Supreme Court justice does. Instead, you heard comments about how it is necessary to have a person of this or that sex or nationality, or with particular life experiences, not to mention preferences for this kind of slant on the law or this take on the political issues of our time. What comments there were on the real topics seemed poorly informed, when not completely partisan altogether. Is this any way to confirm a Supreme Court justice?

The simple answer is yes. The Constitution requires that a Supreme Court justice be appointed with the "advice and consent" of the Senate, which is exactly what happened. Still, one wishes the discussion would have been a bit more elevated. Take as Exhibit One the debate whether Solicitor General, now Justice, Kagan should have been disqualified, or alternatively exalted, for her lack of judicial experience. This question is not a senseless one, but the debate was. Some persons, the President included, seemed at times to suggest that not serving previously as a judge was an extremely valuable qualification to have for being appointed a justice. Others found in Kagan's lack of experience a characteristic that should absolutely preclude her from serving. The reasons on both sides were curious. Sounding at times a bit like Senator Roman Hruska, in days of old, muttering inanities about how mediocre people ought to be represented on the Supreme Court too, some defenders of Kagan's lack of judicial experience seemed to think that this would necessarily bring a whole world view to the Court that it somehow lacked, and was needed, and without which it would function less fairly or well. Their opponents seemed to think that only a person who had been a judge could be a justice, which is almost as senseless as saying that only a judge could become a judge. What a Supreme Court justice does is not the same as what a regular judge does. What the actual qualifications were for the job seemed, amidst this insipid dialogue, never to be genuinely discussed.

What really is the point of this dialogue? We want good justices. But what does a justice do? What's the Supreme Court for? Where was this in the discussion? And what about that most important of all activities of the Supreme Court, the interpretation of the Constitution. "It is emphatically the province and duty of the judicial department to say what the law is," intoned Chief Justice John Marshall, and no law is more fundamental than the Constitution, unless of course you don't believe it is, which at one time was a disqualifying factor for serving on the Supreme Court. But what is the Constitution? What role does it or should it play in our society? And what qualifications need a justice have for that purpose?Is it important to have been a judge to be a Supreme Court justice? Well, yes and no. It's fair to say that judging is difficult. An ancient understanding is that judging concerns "finding the right distance." If an issue to be decided is like a fire, a judge does not want to get too close, where she might get singed. Nor does she want to be too far away, and catch a chill. A judge knows just how near or how far to get from an issue.

And knows what the issues are, too. In many ways, separating out the issues and knowing how to treat them is an activity that runs counter to the ways in which we conduct ourselves in our ordinary lives. A litigator in Chicago tells the story of a trial he had as a young lawyer before one of the smartest judges on the federal bench for the Northern District of Illinois. During the cross-examination of the other side's expert, he brought out that the expert had reviewed certain documents that, by court order, had been precluded from consideration because of their late production. At the conclusion of the testimony, the lawyer moved to preclude the expert. There was "no way," he said, the expert, or anyone, could keep distinct the materials he was entitled to look at and those he was not. They all necessarily would have affected his judgment.

The judge took the matter under advisement. As the parties were cleaning up for the day, and were off the record, the judge took a moment to offer some instruction to the young lawyer.

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Litigation, published quarterly, is the preeminent journal in the field of trial practice. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.



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