I think nominating Justices for the Supreme Court is one of the most important tasks of the President, and also one of the tasks that most often produces unexpected results. (Just ask President Eisenhower, for example, how he felt about his nomination of Justice William Brennan.) President Obama, at the outset of his term, now gets to fulfill that important task. In this article, the President is quoted as saying that he will be looking for a nominee who will have “empathy” with the “hopes and struggles” of the common man. I don’t think I would identify “empathy” as an essential characteristic for a Supreme Court Justice — at least, not in the way that “empathy” is an important quality for, say, a priest, psychologist, teacher, social worker, or bartender.
Obviously, any individual who is nominated to the Supreme Court must be a fine lawyer. I think, however, that the truly exceptional Supreme Court Justices are those who can see beyond result-oriented decisionmaking and perceive the broader potential consequences of the legal rules that are established by the Court’s opinions. For that reason, I hope that President Obama does not limit the universe of potential nominees to law professors or jurists who have been on the bench for decades, but rather considers actual practicing lawyers who have struggled with how to apply Supreme Court decisions in the different, real-world factual contexts that are commonly presented in our law-oriented society. Often, litigation will focus on the interpretation of a single paragraph, a single sentence, or even a single word in a Supreme Court opinion. It would be nice to have a new Justice who could, perhaps, anticipate some of the practical problems that may result from the Court’s choice of words or framing of a multi-factor test that is to be applied under a particular statute and fashion an alternative approach that could avoid those problems. For a practicing lawyer, there is nothing more frustrating that a Supreme Court decision that raises more questions than it answers.