The Right Person for the High Court

By Jeff Sessions
Wednesday, May 13, 2009

If President Obama nominates to the Supreme Court a highly qualified individual with a distinguished record that demonstrates judicial restraint, integrity and a commitment to the rule of law, his nominee will be welcomed in the Senate and by the American people.

But if the president nominates an individual who will allow personal preferences and political views to corrupt his or her decision making, he will put before the public a central question: Are we willing to trade America's heritage of a fair and neutral judiciary -- anchored in the rule of written law that applies equally to all people -- for a high court composed of robed politicians who apply the law differently based on their personal feelings toward a particular person or issue?

The Republicans' role in the Senate's exercise of its constitutional power to advise and consent will be to see that fair and rigorous hearings determine whether the president has selected a nominee who respects the Constitution or one who intends to rewrite it. The consequences of this question cannot be overstated. Only five justices are needed to declare the meaning of the Constitution, thereby potentially dictating huge changes to our nation's economy, culture and law. With such high stakes, the American people rightly expect greatness in our highest jurists -- the greatness personified by John Marshall and Felix Frankfurter and anticipated from John Roberts.

The Senate has a duty to determine whether the president's nominee meets these expectations. Senate hearings represent the public's best opportunity to participate in the process and learn about a nominee's qualifications. Accordingly, senators must ask tough, substantive questions to determine if the individual possesses four characteristics that great justices share:

-- Impartiality. The nominee should demonstrate an ability to fulfill the oath to "administer justice without respect to persons, and do equal right to the poor and to the rich," regardless of the judge's personal feelings toward the parties in the case or the political groups to which they belong.

-- Commitment to the Rule of Law. The nominee should demonstrate a commitment to the design of our Constitution, under which the people's elected representatives in Congress make the laws and judges interpret the laws as written and intended. It is a judge's consistent adherence to the written law -- serving as a neutral umpire, calling balls and strikes fairly, regardless of personal feelings -- that protects our property, our families and our very freedom.

-- Integrity. The nominee should demonstrate unquestioned personal and professional integrity. If confirmed, the nominee will be honored with a lifetime appointment, checked almost exclusively by his or her personal discipline and restraint. Unimpeachable character is an indispensable prerequisite for the job.

-- Legal Expertise and Judicial Temperament. The nominee should demonstrate a mastery of the law, an ability to apply the law to complex facts, and the skill to craft plain and enduring opinions that lower courts, lawyers and the people can understand. The nominee must also demonstrate the humility necessary to be subordinate to the law that he or she will interpret. Great justices recognize the limits of their own power and defer to the wisdom of the people, effectuated through elected representatives and expressed in the written law.

Consistent adherence to the written law, regardless of a justice's feelings toward a particular person or political group in a case, is an essential element to an orderly society. It helps establish the moral authority for law and is the basis for the public's acceptance of judicial decisions.

I look forward to discussing the nomination process with President Obama when we meet at the White House later today. The Senate's examination of the nominee's impartiality, integrity, legal expertise and respect for the rule of law will be rigorous and fair. Senators should refrain from making political attacks on the nominee's character, leaking background materials or taking quotes out of context to create a caricature of the nominee.

Just as we will demand that the nominee be worthy of the office, we in the Senate must also be worthy of the occasion.

The writer, a Republican from Alabama, is the ranking minority member of the Senate Judiciary Committee.

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