Making the Band: A New Supreme Court Justice

Last week Justice Souter of the United States Supreme Court announced that he was leaving the Court at the end of the current term. It is obvious that choosing of a new Supreme Court Justice is one of most far-reaching decisions of any president, because its effects to Americans and the way we perceive what law is and how law is applied. However, Justice Souter’s announcement has caused a furor of activity on the Left and Right flanks of the social, political, and legal landscapes, as his leaving may signal that other older justices are soon to follow. Therefore, the possibility that President Obama could have 2 more appointments to the high Court makes this choice even more important, as it will reveal clues to his legal philosophy as to the path American law will follow: liberal, moderate, or conservative; which path will he choose.

The propaganda machines have begun and it’s the same old arguments just laced with sexism, and other darker aspects of society. For example, Jeffrey Rosen’s hatchet job on Sonia Sotomayor in The New Republic , which was subsequently debunked by truth. Later, Rosen mounted an on-line defense, declaring that his purpose had only been to challenge Sotomayor's judicial temperament on the bench. Judge Sotomayor’s temperament—this is your best shot?

That is the most stupid and ill-conceived argument I have ever heard, and is lacking in any legal basis that would make a judge unfit to serve on the Court. Mr. Rosen, take it from a guy with a Juris Doctor and Masters of Laws, it is not the temperament of the judge or the fact that she asks tough questions, but the quality of the legal reasoning in his/her decisions. If a judge asks a tough question, it God-given sign the judge is carefully considering your argument and weighing the law and the facts of your particular case, and as a good attorney, you had better be able to answer her with sound legal reasoning. It is thinking like yours that caused the country to suffer through faulty right wing, strict constructionist legal reasoning, and Justices that refuse to ask even one question on the high Court.

My advice is to choose a justice that writes like Justice O’Connor, with the reasoning of Justice Marshall, and understood that we are in the 21^st century not the late 18^th, instead of the ramblings of Federalist Five.

What is puzzling is the stupor of creativity exhibited by the GOP in their attacks of late, its 24/7 cultural wars. I mean, if the GOP wants a real debate stop the cultural war and talk legal reasoning of decisions and not temperament. This could give them a good platform for a middle of the road judge, instead of a ultra left/right fight. I know they have tried the activist judge bit, but it is time for a new argument. The answer is simple really, a cultural war gets you votes.

For the extended version of this post on who needs to be the next Supreme, please check out my other site, The Political Jaguar