There has been much discussion in recent years around the role of judges and justices, particular those on the Supreme Court of the U.S. We are seeing that discussion play out vividly in America even today, much of it partisan in nature. Modern liberals want judges who will be focused on policy outcomes. Conservatives seek judges who will be faithful to the legal maxim jus dicere non jus dare or to declare the law, not to make the law.
A dark cloud of partisanship has descended on the federal courts that accompanies the controversial issues of our time. If there were ever a time to guard against the politization of the courts, it is now. The best way to do that is through the confirmation of highly qualified judges who, as Alexander Hamilton asserted, possess “sufficient skill in the laws.” With that wisdom in mind, are we choosing the most qualified people as judges; not only with those skills, but men and women who will properly interpret law, not make it?
Frequently, nominees are evaluated by professional organizations, like the American Bar Association (ABA) which rates the performance and qualifications of a nominee. These ratings matter, along with the legal positions and judicial record nominees have previously accumulated as a lawyer or a judge. The Standing Committee of the ABA assigns to each nominee a rating of “Well Qualified”, “Qualified”, or “Not Qualified” based on three areas of inquiry. The first is the integrity and character of the nominee along with the general reputation in the legal community, as well as the nominee’s work ethic, industry, and diligence. Second, the nominee’s professional competence, including intellectual capacity, judgment, writing and analytical skills, understanding of the law, and the scope of the candidate’s professional experience are all assessed. Finally, the candidate’s judicial temperament is evaluated, including compassion, decisiveness, open-mindedness, courtesy, patience, unbiased manner, and commitment to equality under the law. It’s a well-shaped evaluation that clearly has benefits to both the President and the Senate as they jointly consider the qualifications of judicial candidates for the bench.
Interestingly, while the founders, and Hamilton in particular, opined that we must have highly qualified judges, the Constitution is completely silent on the underlying qualifications of a person nominated to be a judge or justice. Nowhere is there any mention of bar association evaluations or other metrics to consider whether a person is qualified to be a judge. Of course, neither does this exist for the election of a President or members of the Congress. Nevertheless, does the unique role that a judge plays in guarding the Constitution and administering justice demand that we impose higher standards of qualification for men and women who preside at trials which could deprive a person of their freedom or property?
Imagine for a moment if this proposed language were in our Constitution.
Whenever the President shall nominate a Judge for the Supreme Court or the inferior courts established by Congress, the President shall take care to ensure such nominee is of the highest integrity and character, assiduously competent and skilled in the law, possessing an even-tempered demeanor, a reverential practice toward the law and rights of the people, and an inveterate adherence to the original intent and textual meaning of this Constitution and the transcendent principles that undergird the founding of the United States. The Senate shall render its advice and consent in confirming a nominee for the court consistent with these parameters.
Some would suggest that the language of a prospective amendment like this should be self-evident. Of course we would want and insist on justices of the Supreme Court with integrity, character, and competence with “sufficient skill in the laws.” Fortunately, throughout our history, with few exceptions, we have been blessed by men and women of this quality. But more is needed in setting the standards for selecting a justice.
What would be new in the above language is the establishment of expanded parameters that make clear the requirement that justices have a “reverential”—a dutiful respect—toward both the law and rights of the people, as well as an “inveterate adherence to the original intent and textual meaning of this Constitution.” That would also include a faithfulness to the “transcendent principles that undergird” our founding as a nation.
This week we’ve witnessed the examination of just such a person, Circuit Judge Amy Coney Barrett. She would fit perfectly within the expanded criteria described above. If there were ever a time for justices who observe originalism and textual fidelity, it’s now. More importantly, however, is the need for justices who appreciate the transcendent values of our nation, for without those values, we’re carried adrift on a ship of state tossed by the waves of passion and partisanship. We need Justice Barrett on that ship of state’s bridge.
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