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How to choose a Supreme Court justice

Guest Blogger

As Justice John Paul Stevens prepares to retire from the Supreme Court, President Obama has to weigh a raft of considerations in choosing his successor. With a bit of fortuitous timing, Bill Barnhart and Gene Schlickman have recently completed a biography of the long-serving justice, “John Paul Stevens: An Independent Life,” to be released in May by Northern Illinois University Press. The book explores Stevens’s affluent youth and dogged independence throughout his career. Expecting that Stevens would likely retire sooner rather than later, Barnhart and Schlickman also included some advice to Obama on selecting a successor. Here is an edited excerpt of the authors’ unsolicited counsel.

By Bill Barnhart and Gene Schlickman

Good writers are good thinkers. Any appellate court judge who lets his or her clerks write opinions should automatically be disqualified for higher judicial office. Obtain testimony on this point. As Stevens told his law clerk Lawrence Rosenthal, “I’ll do all the first drafts. Sometimes you can be totally unsure how a case is supposed to come out until you sit down and write.” Roger J. Traynor, former chief of the California Supreme Court, put it this way: “I have not found a better test for the solution to a case than its articulation in writing, which is thinking at its hardest. A judge . . . often discovers his tentative views will not jell in the writing.”

Mentors shape lives. The egos of persons considered for judicial appointment may be large and self-defining. But studying those who influenced the candidate professionally and otherwise can be illuminating. If the candidate cannot name several mentors and explain their influence beyond platitudes, find another candidate.

How did you get here? Despite all the talk about merit selection of federal judges, every individual put forward for such a high public office has backers. The public deserves to know who they are and what their stake is in the candidate.

Test for political naiveté. Ignorance of or aloofness toward politics is a handicap for a judge. Stevens is not a Washington gadabout, but he is an astute political observer dating back to his days as a spectator of Chicago politics.

Verify work habits. A judge who agonizes too long over a written opinion or a response to the work of colleagues stands to become irrelevant. Justice Ruth Bader Ginsburg said that a secret to Justice Stevens’s power in shaping the court is the speed at which he provides useful written feedback to the work of fellow justices.

Appellate judges make law. Ask the candidate to discuss, with specificity, examples of good lawmaking from the bench on the one hand and incidents when the Court committed a self-inflicted wound on the other. The best case studies of recent vintage for this purpose are Bush v. Gore and Citizens United v. the Federal Election Commission. Without asking a candidate how he or she would have ruled, a questioner could ask, “Should the Supreme Court have taken these cases? Why or why not?” The answer might tell much about the candidate’s understanding of the Court’s role as the third branch of government.

Inquire about the candidate’s health in a holistic way, not just the last medical checkup. The evolution of a responsible judicial philosophy never ends, nor does the development of political skills needed inside the Court to make an impact on the law. A candidate for a lifetime appointment to a largely sedentary job who is not proactive about fitness should be barred from the team.

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By Steven E. Levingston  |  April 13, 2010; 5:30 AM ET
Categories:  Guest Blogger  | Tags: Barack Obama, Bush v. Gore, Justice Stevens, Law clerk, Ruth Bader Ginsburg, Supreme Court, Supreme Court of the United States, battle over supreme court justice, retirement of John Paul Stevens, selecting a supreme court justice  
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