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Freeman: On the Supreme Court

06/29/09 5:55PM By Castle Freeman
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(HOST) Commentator Castle Freeman has been thinking about the Supreme Court - both the ideal and the reality.

(FREEMAN) Sometime next month, Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit, in New York, will sit down before Senator Patrick Leahy's Senate Judiciary Committee for hearings on her nomination by President Obama to replace retiring Justice David H. Souter on the U.S. Supreme Court. It looks like Judge Sotomayor won't have a very tough time winning confirmation, in part because, as a presumptively liberal judge replacing another of the same stripe, she isn't expected to alter the philosophical balance of the Court. It's thought that Senators who oppose her confirmation won't risk a lot of skin in a fight that leaves the ideological composition of the Court unchanged.

We'll see about that. But before the drama of the confirmation process begins - and the controversy if there is any - we might take time to reflect on the very idea of a balanced court and on how that idea dominates - and, perhaps, distorts - the process of judicial selection.

Legal scholars, elected officials, journalists, and citizens today see the Supreme Court as a pair of scales or a balance beam with most of its nine members occupying one or the other end of the beam according to their judicial philosophies. The scales are, roughly and on average, balanced - and that's a good thing. Over time, as the two opposing sides of the scales contend, justice is achieved.
 
This model, simple, mechanical, pretty much describes the Court of the last 25 years: four conservatives on the right, four liberals on the left, and a swinger in the middle who may go either way. But a mechanism in balance is not the only model for the conduct of a high court; and it is not - or at any rate not obviously - the model that the authors of our Constitution had in mind.
 
In 1788, Alexander Hamilton, discussing the qualifications for members of the judiciary in /Federalist/ No. 78, observed that, because of "the variety of controversies which grow out of the folly and wickedness of mankind," a judge must have a profound and exact knowledge of the large and complex body of the law. Candidates qualified by their legal learning will be few. Moreover, Hamilton went on,"making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."

Here, a high court is not a mechanical system of counterpoised weights, but an order of superior individuals. Justices are selected, not because of the effect their principles and prejudices may have on some judicial balance of power, but from demonstrated personal qualities: wide learning, mature judgment, and scrupulous honesty.

Constitutional jurisprudence isn't a team sport. We can imagine a Supreme Court having, say, two conservatives on the right, two liberals on the left - flanking five grownups. We can imagine it, though admittedly, "making the proper deductions for the ordinary depravity of human nature," we probably shouldn't count on actually seeing it any time soon.
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