During every debate there are questions to the candidates about their judicial philosophy, what kind of judges they would nominate, which judges do they respect, do they have litmus tests, etc.  All anyone ever walks away with are two things:

1. Liberals want judges to view the constitution as a living document that can be flexible.  These are labeled as “activist” judges.  They are criticized for “legislating from the bench.”
2. Conservatives feel that judges should interpret the constitution as it was written.  These are known as “originalists.”  They are criticized for not taking into account the context of the case and the latest public thinking.

Most people only consider the Court in the context of their opinions on Row v Wade, Bush v Gore and the coming Health Reform decisions.  But the court rules on roughly 80 other cases each term.  Many of the other cases are unanimous opinions, implying that judicial philosophy and the seriousness with which they do their jobs, is far more uniform than the “divided court” that we hear about so much.

Don’t get me wrong, I am no legal expert.  I took Intro to Law in college and I was horrible at it.  I probably got a B, which at the time would have been frustrating to drag down my GPA.  Prof. Salimbene I think is how you spell his name.  He was a really good teacher, I just couldn’t analyze cases in the way that other people did and I couldn’t memorize them at all.

That which I know comes from listening to a podcast for the past 2 years (and reading George Will).  Supreme Podcast.  I think these guys are awesome.  They have made me into a Supreme Court junkie.  The best part is that they summarize everything that happens at the court each week of the session.  They detail all grants of certiorari (granting review of a lower court case), oral arguments and most importantly written decisions.  I have also listened to podcasts from CSPAN with interviews of each of the justices.

It’s hard to say exactly why I am such a fan of the court.  A lot of it has to do with the very simplicity of its charter.  Nine justices and 36 clerks accomplish so much work in very little time.  I love the formality and respect they have for each other.  The way they all shake hands at the beginning of each day of work.  The order with which they sit in chambers reflecting the years of service and seniority.  The little traditions like having the newest justice open the door when someone knocks.

I am not quite the purist that Scalia is, but I understand why conservatives think the way they do and in fact I support their logic.  Having a court that stays pure, forces the government to act the way it should and evokes a consistency and certainty that makes for a pleasant economic and political environment.  It forces the administration to enforce laws as they are written and it forces Congress to be specific with the legislative process, amending statutes that don’t behave as intended.

Here is an example.  Cavazos v Smith –  a grandmother was convicted of killing her grandchild via shaken baby syndrome.  There was a wealth of evidence that this was just a horrible mistake, but the same evidence could also have been indicative of SBS.  Her lawyer was awful, is now no longer practicing in California and is up on disciplinary charges from the bar.  The reviewing magistrate and district court agreed that she received a fair trial (denied her petition for habeas corpus – relief from her conviction) and that while some of the evidence was conflicting, it was “rational” that she could be convicted by a jury of her peers.  The 9th circuit court of appeals found that the evidence at the trial was not enough to convict her and granted her petition for habeas corpus.  The Supreme court has twice reversed this decision and twice the 9th circuit ruled the way it wanted, spurning the Court.  On this last reversal (#3) the Court ordered the 9th circuit to deny the petition because the 9th circuit could not make a judgement about evidence heard at a trial in which it did not sit.  That makes sense, who are they to determine what the testimony looked like in court, you can’t get that from reading a transcript.  The grandmother was sent back to jail.

This is a sad case and most likely the grandmother truly does not belong in jail.  But here’s the thing about the law and our constitutional process; it may be messy, but there are escape valves to clean things up.  In specific, the governor of California could grant clemency.  The point of ruling on the merits of the case and not how a court wishes things would turn out is that we have consistency in our legal framework, something that countries like Libya, China and Iran cannot claim.  Just because Bill Clinton’s Mark Rich pardon fiasco has tainted the clemency process and cripled Governors and Presidents from utilizing one of the most specific powers granted in the Constitution, does not mean that judges should go around righting the wrongs in every case.  Justice Breyer told me that (see time 1:01).  (Link to Transcript page 29) As he explained it, Chief Justice Taft once said that ‘we are not a court of error correction’.  That can sometimes be painful but it is what is right.

In another example that will show a strange legal twist, a group of Nigerians is suing the Royal Dutch Petroleum Co for human rights violations (Kiobel v. Royal Dutch Petroleum).  But how can you sue a corporation as a perveyor of crimes against humanity?  Well it just so happens that a few years ago the Supreme Court in Citizens United v. Federal Election Commission ruled that corporations can act as though they are people.  Here is an example of a case that liberals hate because of its effects on campaign finance, becoming a crucial point in harming big business.

So what type of justice would I like?

I find Justice Alito’s opinions hard to read but I really like that he dissented in the court’s refusal to hear a case (Harper v Maverick Recording Company) where a 16yr old girl was fined $27,000 by 5 record labels because she didn’t know downloading 37 songs was illegal. According to the 5th circuit she should have read the warning printed on the albums. Certiorari takes 4 justices, meaning the right-wing Alito couldn’t get 3 liberals to stick up for the little guy.   I respect that.

I have long been a fan of Justice Breyer.  I like the way he thinks, the way he talks, the way he explains things.  I like the way he conjurs hypotheticals to contrast with Justice Scalia.

Speaking of, Justice Scalia’s hypotheticals in oral argument are legendary.  I like the way he reveres the court and the respect that he expects the lawyers to have for it.  I find his opinions very easy to read, but I don’t like the way he chastises the minority, that’s just unnecessary.

I was a big fan of Justice Sandra Day O’Connor.  She has an amazing life story.  I like the way she stood up to the old boys on the Court and poked fun at them while still standing her ground on legal merits.  I’ve only read one or two opinions, but I liked her style and the way she used logic to get through them.

I really like the way Justice Thomas is a regular guy.  He and his wife travel the US in the summer in their RV staying in trailer parks right next to ordinary Americans.  He talks about going into a Home Depot looking for parts while on the road.  I like that he has an opinion that oral argument is overrated.  Between all of the amicus briefs they read (usually 20-40 documents of 20 pages each for each side of the case) he feels that he doesn’t need to ask challenging questions.  So screw those idiots on Boston Legal.  I like the way he criticizes the court’s lack of clarity over the years (establishment clause) like he did by writing the (rare) dissent in not granting cert for Utah Highway Patrol v American Atheists.

I think it was absolutely irresponsible for President Obama to appoing Justice Kagan.  Did you know that she had to recuse herself from almost half of the cases that the Court heard last year because as solicitor general she prepared the government’s position on those cases?  How do you hire someone who fundamentally can’t do that job?  I think she should have returned half her salary.

Justice Sotomayor is either clueless, lazy or just full of herself.  Everytime she talks in oral argument, I cringe.  I can’t find the cases now, but just a few weeks ago she interupted Justice Ginsburg so rudely that Justice Roberts had to stop her.  There was another case recently when a lawyer presenting an amicus brief was allowed to testify before the court and before he got out a full sentence she interupted him to ask which side he was supporting…read the brief you lazy bum.

So when I think of the Supreme Court I recognize how lucky these people are to go to work everyday with some of the top minds in the country.  Who among us can say that they actually are surrounded ONLY by smart people.  You may disagree with the way their intelligence interprets certain facts, but you can’t deny that they do their job seriously.  As long as someone seems like a person who has seen something of life and the world, and understands the importance of consistency in legal jurisprudence, and can show some of the positive traits I listed above, that’s the judge for me.