Rambling Thoughts on a Supreme Court Pick

President Obama is facing one of the most important decisions he will make in his presidency, and the ramifications of his selection could last for the duration of the Union. The United States still lives under the jurisprudence developed by Chief Justices Marshal and Warren, as well as Justices Black, Brandies, and Holmes just to name a few.

The recent developed process for selecting new Justices to the Supreme Court is to select a judge that is currently sitting on one of the appellate circuits. The most recent deviation from the current practice was Presidents Bush's attempt to place Harriet Miers, then White House Council, to the bench burst into flames as it was completely an act of cronyism.

I don't think the United States has benefited from this new practice, as it naturally narrows the field of eligible candidates and if President Obama wants to include a member of a minority group, he would be well served by widening his net.

It would not be unseemly if President Obama selected a former judge that was still active in the legal community. I do think it would prudent that he select one that became a law professor at a school of law that was ideologically neutral (sorry, Pepperdine) or just left of center, but if he thinks he has political capital to spend...

The largest untapped resource of legal talent, in regards to nominations to the Supreme Court, is the Supreme Courts of the several states. Fourteen States follow either the Missouri Plan or a modified version thereof in order to select their Justices, which allows for a more meritorious, rather than political, appointment process (as much as that is possible). As an added bonus, it also curbs corruption.

Last thoughts
As a somewhat lightweight follower of the Supreme Court and my own local judiciary, a few things bug the living day-lights out of me when it comes to legal conversations:

• Claims of Judicial Activism- Not that sometimes they are not valid, but the claims always come from the right end of the spectrum, and they completely ignore their own judicial activism. The most obvious example is when conservatives wish for "One more seat" so they can overturn Roe v. Wade. It also occurs when Justices switch their doctrines on a specific case, like the conservative Justice did in Bush v. Gore. The conservative justices had been adopted a doctrine of less interference in the affairs of the several states, reversed course when it came to placing Bush in the White House, then continued their process of reducing federal interference in the affairs of the several states.
  
  
  
• Claims of Legislating from the Bench - Very closely tied to judicial activism, and it occurs when the Court makes laws, or requires certain acts are done, that are not required by a legislature. The liberal end of the bench did so in the sixties by requiring Miranda warnings, and the right did so in Exxon v. Baker by limiting punitive damages in favor of large business. The annoying thing (to me) is conservatives completely lack the awareness that their side does the same thing and they need to stop tripping into hypocrisy.
  
  
• Word Substitution - This is the fault of the Justices, not court watchers. There are few better ways to know that a Justice is legislating from the bench or participating in judicial activism than when they start substituting words into statutes or the Constitution. The most blatant example of this in recent times is the Kelo Case.
  
  In the Kelo Case the Supreme Court accepted the argument that the 'public use' requirement of eminent domain was the same as 'public benefit.' Therefor it was possible for the government to legally force someone to transfer their private property to another private person/entity.
  
  The idea that the Supreme Court or another court can substitute words into statutes is ridiculous. Legal words are terms of art, and the development of their definitions is a long and in depth process. Add on top of that the fact that many legislators are lawyers that know the importance of selecting the proper verbiage and word -substitutions are a slap in the face of the American division of power.
  
  I don't think that most people know the legal difference between deliberately, intentionally, and willfully... but to a defendant, difference can be acquittal, conviction, or possibly being remanded to a mental institution. If you look at the words deliberately, intentionally, and willfully and can't tell how different the definitions are, then hopefully you have some idea how improper it is for Justices to start substituting words

One final last thought... I have not heard any of the commentators mention Bork, or borking, just yet, and that is another term that I think is thrown around with two disparate meanings.

Republicans use it to describe how Democrats blocked the nomination of a competent lawyer to the Supreme Court for ideological reasons and completely white wash what those 'ideological reasons' may be, and further, ignores the moral deficit that Bork exhibited by participating in the Saturday Night Massacres. Of course, Democrats are more likely to use 'bork' with an emphasis that does not include technical competancy.

Further compounding my ire about the use of the word bork is Republicans never use it to describe their own efforts to stop the nominating of someone who is technically competent but they are opposed to ideologically or morally. The most recent example of that is SarahPAC efforts to blog the nomination of Kathleen Sibelius as Secretary of Health and Human Services because she is pro-choice/abortion.

And of course, the Republicans in the senate are going to bork whoever Obama nominates, but they won't call it that.