How Biden should choose a new justice

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We want people on the bench who are aware of the “crooked wood of humanity”, not reliable ideologues.

The Biden administration’s promise about the identity of its prospective Supreme Court nominee shows disbelief in Justice Felix Frankfurter’s assertion that “we as judges are neither Jews nor gentiles, neither Catholics nor agnostics,” and his confederate assertion that “if… the law is nothing but politics, then Hitler has won.”

A quota system in favor of a 7 percent minority is also a double-edged sword. Republicans appropriately defied Judge Merrick Garland for his accepted views, without mentioning the fact that his endorsement of a 2.4 percent Jewish minority would have brought in four out of nine judges. This is despite the fact that influential legal commentators such as Linda Greenhouse and Geoffrey Stone have shown no such leniency towards the Court’s Catholics.

Whoever Biden nominates from a preemptively constrained pool of candidates, unless she is the incarnation of Athena, is likely to be suspected of incompetence. This is unfortunate, as there are almost certainly individuals in the desired category who are at least as competent as the Court’s most recent boastful unguided missiles, Justices Anthony Kennedy and Harry Blackmun, to tell us not only the abortion controversy but the doctrine of commercial speech delivered and unlimited campaign spend. Second Circuit Judge Amalya Kearse, a particularly sensible judge, would have spared the court many of its recent troubles

If the court’s “quota democracy” is not to add an unwise black woman to the court’s unwise Latina, the current fleeting controversy over abortion should not be the criterion of choice. It is rendered obsolete by the “morning after” law and the disillusionment of a rising generation suffering the consequences of court-sponsored situational ethics. Instead, candidates should be judged on their education and familiarity with tradition. Like Judge Learned Hand,

I dare to think that it is equally important for a judge who must refer a question of constitutional law to have at least a nodding acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant as well as with the books written specifically on the subject. Because things like that are all about the spirit in which he approaches the question before him.

In judging presidential candidates and judges, the press was indifferent to their undergraduate preparation, despite the fact that juniors Bush, Gore, Kerry, and Obama floated through the college in substance-induced fogs. Not without consequences, the pre-eminent judge Henry Friendly focused on modern European history while the disastrous Blackmun studied mathematics. Tony Blair later regretted that he had not studied modern history instead of “boring Oxford jurisprudence” and even Robert Taft, a distinguished student, wished he had concentrated on English literature rather than dissipating his energies.

Historian John Lukacs has written disparagingly of the malign influence of “international relations” specialists, and the same is true of too many economists and “political scientists” who think their neighboring disciplines are mathematics and statistics rather than history and social psychology. History and literature provide records of how people actually behave, not how theorists think they should behave. We want people on the bench who are aware of the “crooked wood of humanity”, not reliable ideologues.

It may seem unfair to examine the intellectual preparation of nominees, perhaps from humble backgrounds. But deficits are not irretrievable. A copy of Daniel J. Meador should be provided to the successful nominee Justice Black and his books (University Press of Virginia, 1974) and admonished to refuse all plaques and awards and to refrain from eating chicken.

George Liebman is President of the Library Company of the Baltimore Bar and the author of numerous works on law and history, most recently Vox Clamantis in Deserto: An iconoclast looks at four failed governments.





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