By Donald B. Ayer
Monday, June 21, 2010; A17
I have a modest request: that the upcoming Supreme Court confirmation hearings be an occasion for public education about what that court actually does and an inquiry into whether Elena Kagan possesses the attributes to do it well. At least, please spare us the spectacle of senatorial bloviating to extract a pledge to decide cases without actually making choices, by the mechanical application of the law to the facts, like a calculator doing math.
Recent history is not promising. Since 2005, when then-Judge John Roberts analogized the justices' role to an umpire calling balls and strikes, each hearing has dug us in deeper. While the chief justice's analogy is fair enough as a statement that justices must be impartial, it has been taken to mean much more. The coup de grace came last year, when, under intense senatorial grilling, Sonia Sotomayor of all people pledged to just apply the law to the facts, promised never to let an empathetic thought into her judicial reasoning and denied any relevance to her life experience. Liberal commentators expressed disappointment; Justice Samuel Alito offered a public "atta girl."
The trouble is, mechanical, objective decision making is not what the Supreme Court does. Ever. It is comforting to think that elected legislators legislate, the elected president executes and unelected judges make no choices. While lower courts, to the extent that they handle straightforward, routine cases, may at times approximate this ideal, the Supreme Court, by design, does something entirely different.
The Supreme Court has near total discretion over the cases it hears and selects ones that have no easy answers. The one in 100 cases it hears mostly raise legal issues that have seriously baffled lower courts and produced substantial disagreement among them. Where, as is typical, substantial numbers of thoughtful judges have differed after giving it their best shot, real uncertainty exists as to what the law is.
Here's the rub: In nearly all the high court's cases, doubt exists not because the half or so of judges who decided the issue are stupid, don't get it or otherwise made some identifiable mistake. Rather, doubts exist because there are substantial persuasive arguments on both sides that cannot be dismissed as invalid or wrong. These cases must be resolved by deciding which collection of arguments is the more compelling; the justices make decisions by choosing to give priority to one set of contentions or another.
This is true of many constitutional cases, both because the Constitution is often unspecific and, as retired Justice David Souter recently observed, because its splendid generalities, such as equality and liberty, are sometimes in tension with one another. It is also true in the much greater number of more routine cases, such as where the words of a statute leave doubt about its coverage or effect.
In those cases, the statute's ambiguity is resolved by other considerations, found in surrounding or related provisions, statutory objectives stated in the law or otherwise apparent, history surrounding the statute or its subsequent evolution, and the consequences that will predictably flow from alternative interpretations. Nearly always, these and other factors point in different directions and a resolution is possible only by making choices based on the weight given to competing considerations.
So far from the stereotypical judge whose values and experience play no part in her decisions, the justices' real job is, as a group, to make hard choices between plausible alternatives, in case after case. This demands uncommon qualities of intellect, experience and character that should be the focus of any nominee's hearings.
The attributes of a good justice deserve much more discussion, based on an accurate assessment of what the court does. The Kagan hearings could usefully address that subject, if the media and public demand it and willful senators can be deterred from hijacking the microphone for myopic political purposes.
Certainly, any such discussion will conclude that intellectual integrity and rigor are critical, as the public is entitled to a clear statement of the choices at hand and of the court's reasons for its resolution. Further, the intelligence relevant to the task is not simply cleverness and an ability to score debaters' points. Of greater relevance is a demonstrated history of good judgment and prudence, in life as in legal work.
With a keen mind must come the capacity to influence others but also humility and a willingness to seriously consider the perhaps divergent views of one's colleagues. The court's infallibility comes primarily from its ability to speak coherently as a collective body and only rarely from the unassailable correctness of any particular resolution. With that in mind, ideologues who come to the bench with a set agenda and others who think they have all the answers should be rejected at the outset.
The writer is president of the American Academy of Appellate Lawyers. He has argued 18 Supreme Court cases as a lawyer at Jones Day and as deputy solicitor general in the Reagan administration.