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How Biden Should Choose a New Justice

We want on the bench persons aware of "the crooked timber of humanity," not dependable ideologues.

The Biden administration’s promise about the identity of its forthcoming Supreme Court nominee shows disbelief in Justice Felix Frankfurter’s proposition that “as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic,” as well as his allied proposition that “if law is nothing but politics, then Hitler has won.”

A quota system benefitting a 7 percent minority is also a two-edged sword. The Republicans appropriately opposed Judge Merrick Garland because of his assumed views, without mention of the fact that his confirmation would have given a 2.4 percent Jewish minority four justices out of nine. This even though influential legal commentators such as Linda Greenhouse and Geoffrey Stone have shown no such indulgence to the court’s Roman Catholics.

Whomever Biden nominates from a preemptively narrowed candidate pool, unless she is the incarnation of Athena, will likely be suspected of incompetence. This is a misfortune, since there are almost certainly persons in the desired category who are at least as competent as the Court’s recent vainglorious unguided missiles, Justices Anthony Kennedy and Harry Blackmun, who gave us not only the abortion controversy but also the commercial speech doctrine and unlimited campaign spending. Judge Amalya Kearse of the Second Circuit, a notably sensible judge, would have spared the Court many of its recent difficulties

If “quota democracy” is not to add an unwise black woman to the Court’s unwise Latina, the current ephemeral controversy over abortion should not be the criterion of choice. It is being rendered moot by the “morning after” bill and the disillusionment of a rising generation suffering the consequences of judicially fostered situation ethics. Instead, candidates should be assessed by their education and familiarity with the tradition. Like Judge Learned Hand,

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law to have at least a nodding acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne, and Rabelais, with Plato, Bacon, Hume and Kant as with the books which have been specifically written on the subject. For in such matters, everything turns upon the spirit in which he approaches the question before him.

In assessing presidential candidates as well as justices, the press has been indifferent to their undergraduate preparation, despite the fact the junior Bush, Gore, Kerry, and Obama floated through college in substance-induced hazes. It is not without consequence that the outstanding Judge Henry Friendly concentrated on modern European history while the disastrous Blackmun was a mathematics major. Tony Blair later regretted not studying modern history instead of “boring Oxford jurisprudence” and even Robert Taft, a stellar student, wished he had concentrated on English literature rather than scattering his energies.

The historian John Lukacs wrote disparagingly about the malign influence of “international relations” specialists, and the same can be said of too many economists and “political scientists” who think that their neighboring disciplines are mathematics and statistics and not history and social psychology. History and literature supply a record of how human beings behave in fact, not how theoreticians think they should behave. We want on the bench persons aware of “the crooked timber of humanity,” not dependable ideologues.

To inquire into the intellectual preparation of nominees perhaps from humble backgrounds may seem unfair. But deficits are not irredeemable. The successful nominee should be presented with a copy of Daniel J. Meador’s Justice Black and His Books (University Press of Virginia, 1974) and be admonished to refuse all plaques and awards and to stay off the chicken-dinner circuit.

George Liebmann is president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, most recently Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations.

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