375. Replacing the 69-year-old virgin

The problem with finding a replacement for Justice Souter is that it matters so much. If only our Supreme Court justices were judges! In one of the more sanctimonious pieces of nonsense to come out of the Supreme Court in recent years, Justice Ginsburg once wrote:

Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide "individual cases and controversies" on individual records, neutrally applying legal principles, and, when necessary, "stand[ing] up to what is generally supreme in a democracy: the popular will."

In Justice Ginsburg's defense, she didn't believe a word of that. It certainly doesn't describe the "mission" of, say, the Kansas Supreme Court, which describes its political function rather differently:

The Supreme Court, by constitutional mandate, has general administrative authority over all Kansas courts. Its rules govern appellate practice in the Supreme Court and the Court of Appeals, and procedures in the district courts. Supreme Court rules also provide for the examination and admission of attorneys, set forth the code of professional responsibility which governs the conduct of attorneys, and include the canons of judicial ethics which govern the conduct of judges. Rules also provide for the examination and certification of official court reporters. The Supreme Court may discipline attorneys, judges and nonjudicial employees.

All of the nonjudicial employees of the Kansas court system are under a personnel plan adopted and administered by the Supreme Court.

And so on. I'm sure the Kansas justices would say they also do the things Justice Ginsburg described, but that makes it just one part of the job.

Ginsburg's description has even less to do with what the Supreme Court does, because the Supreme Court has complete discretion over its docket. The justices won't agree to hear a case unless at least four of them want to hear it, and why would they want to? Because they're indifferent?

Has there been a news article yet that didn't tag Souter as a "liberal" or, you know, "liberal"? Try searching for "Souter liberal" in Google news. My search came back with "Results 1 – 10 of about 6,000 for souter liberal. (0.27 seconds)." 

When we describe a justice, or any judge, as liberal or conservative, all we mean is than that the judge is committed "on controversial issues in advance of adversarial presentation." 

Do you think Ginsburg is committed on issues such as, say, pay equity for professional women?  (She's much less concerned about the well-being of women who don't wear power suits, I've noticed - the ones who become victims of violence.)

The Supreme Court is in the business of creating law, not applying it - which is just another way of saying that it's the only governmental agency entirely free of the law, because the law can never be anything but what the court itself says it is.

So what we're about to endure is yet another silly roundelay in which no one says out loud what they know is true: we're picking someone to make law for the next 20-30 years.

Now, if you're going to elect somebody to make law to govern your society, what's the one thing you would want to know about him or her? Right.  Nothing else matters much in comparison to knowing what he or she will do with the power you propose to give him or her, especially since you can't revoke the grant.  But by the absurd conventions of the process, that's the one thing we're not allowed to ask. We have to pretend our heads are stuck in the fantasyland described by Justice Ginsburg.

Given that we're forbidden to know in advance what the new ruler will do to us, we don't have any choice but to apply essentially arbitrary factors to evaluate his or her fitness for the job.  In the media, the arbitrary markers of choice are race / ethnicity and gender, which (as Clarence Thomas continually demonstrates) makes no difference at all to a justice's actual exercise of power over the lives of Americans.

Here are some factors that would actually make a difference.

DEFINITE DISQUALIFIERS

1.  Being a federal appellate judge should be an absolute disqualifier.  Every member of the current court is a former federal appeals court judge, and it shows.  People who have devoted a substantial part of their lives to an institution, and enjoyed great professional prestige as a consequence, will remain loyal to it.  They will refuse to think ill of it.  They will get all teary-eyed and sentimental about it. 

2.  Having practiced law for less than 10 years.  We currently have a court full of people who never practiced law, or only for a couple years in their youths.  Scalia, Ginsburg, Thomas, Breyer - their knowledge of law is all hearsay.  They've read about it.

 3.  Being a law professor.  The chief characteristic of professors who become judges is that they demand reality conform to their ideas, rather than adjusting their ideas to reflect reality.  That happens to be the very thing that makes the current court so low-functioning. 

The inadequacy of the current justices, bright people all, have succeeded only in making the criminal law increasingly random in its application.  But they don't know enough about what goes on in the courtroom to understand that randomness is a problem.

(Query: How many of the current justices ever tried a case?  To a jury?  How many have watched a trial from beginning to end, as participant or spectator?  I don't know the answer to any of those questions, but I suspect the answer to each is less than nine.)

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