Legal Affairs; Miller-McCune by James L. Gibson - June 20, 2010
What kind of justices do the American people want on the U.S. Supreme Court? As the country awaits the Senate’s decision on whether Elena Kagan should replace Justice John Paul Stevens on the nation’s highest court, discussions about the desirable attributes of judges have been reignited. This debate is particularly important at this point in history because the justices of the U.S. Supreme Court have become an unusually homogeneous bunch. Hailing from Harvard or Yale, having served on the lower federal judiciary, but also having precious little experience in any politics but the politics of the judiciary, and even sharing in their religious beliefs, the current U.S. Supreme Court certainly does not mirror the characteristics of their constituents, the American people. In connection with the Sonia Sotomayor nomination, President Obama started a public conversation on the desirable attributes of Supreme Court justices, focusing on the expectations the president and others hold for judges. Quickly sensing the political dangers of opening a debate on this issue, the president and his nominee retreated, to the point that the nominee failed to stand by her assertion that having a “wise Latina” on the bench would be good for the Supreme Court. Indeed, so radical was Sotomayor’s shift from the wise Latina theory of judging to a mechanical view of judging that many scholars of the courts — left and right — have accused her of being disingenuous in her testimony before the Senate, or worse.
Despite the importance of the issue, debates about what the American people want in their Supreme Court justices are practically never guided by systematic evidence. Consequently, with the support of the Murray Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis, I conducted a survey of a random sample of the American people in the summer of 2009, before the confirmation of Sotomayor to a seat on the Supreme Court. The survey specifically sought to determine the characteristics Americans want in those who are elevated to the high bench. In addition, I attempted to ascertain whether views of good judging — like everything else in the polarized politics of contemporary American politics — are connected to partisanship and ideology.
In 2007, even before he was president, Barack Obama began the debate by declaring: “We need somebody who’s got the heart, the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old — and that’s the criterion by which I’ll be selecting my judges.” Thus, his first nomination stimulated widespread debate about what constitutes a good Supreme Court justice. At the center of the debate over the characteristics of judges was the meaning of “empathy.” President Obama asserted that he sought judges who could empathize with ordinary people; much debate about this trait ensued, with conservatives charging that empathy was nothing more than a synonym for their much-hated “liberal activism.” Despite the politics, the discussion of empathy revealed important and meaningful differences in how people viewed the process of judging on the U.S. Supreme Court. In my 2009 survey, the respondents were asked a set of questions about the desirable attributes of Supreme Court justices. The question stem read: “We have spoken about the U.S. Supreme Court during this interview. Thinking about the characteristics of a good Supreme Court judge, how important would you say it is for a good Supreme Court judge to . . .” The attributes about which we asked are:
• Strictly follow the law no matter what people in the country may want.
• Be especially concerned about protecting people without power from people and groups with power.
• Be involved in politics, since ultimately they should represent the majority.
• Respect existing Supreme Court decisions by changing the law as little as possible.
• Listen to the people before making decisions that affect the country as a whole.
• Try to maintain the appearance of being fair and impartial no matter what the cost.
• Ensure that the law is fair, not just legal.
• Uphold the values of those who wrote the U.S. constitution long ago.
• Base their decisions on whether they are a Republican or a Democrat.
• Decide cases the way the majority of the people in the country prefer, even if that goes against existing laws.
• Base their decisions on whether they are a liberal or a conservative.
• Be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.
In terms of the other expectations about which we asked, strong correlations are observed between the empathy expectation and the items about protecting people without power, listening to people when making decisions and making fair, not just legal, decisions. Clearly, these expectations reflect a contextualized view of judging, one in which strict legality is expected to take a back seat to fairness.
A similar finding emerges from analyzing the views of liberals and conservatives. Liberals are indeed more likely than conservatives to value judicial empathy. But 64 percent of those describing themselves as extremely conservative assign the highest value to empathy, and this figure climbs to 69 percent of those who call themselves somewhat conservative. The percentages for liberals are higher, in the 70s. But these data show that the dominant view among liberals and conservatives alike is to value empathy as a characteristic of Supreme Court justices. I do not deny (and have no ability to analyze) the possibility that liberal/Democrats and conservatives/Republicans differ on who “the people” are that must be empathized with. I would not be surprised to learn that both groups want justices who empathize with people sharing their values and ideologies. Indeed, I find at least a weak tendency for those who rate empathy highly to also expect that judges should base their decisions on their ideologies. Most likely, empathy means that judges should make fair, not just legal, decisions, but that liberal fairness and conservative fairness are often quite different beasts.
As I have reported here before support for judicial activism – understood as meaning “that judges rely on their own judgments of what is fair in the case rather than allowing the Constitution, the legislature or prior court decisions to dictate what the outcome of the case will be” — is considerably more widespread than most imagine. In the 2009 survey, 40 percent of the respondents preferred or strongly preferred that judicial activists be on the bench, compared to 30 percent preferring strict constructionists (and 30 percent not knowing their own preferences). Among those holding a view on activism, 57 percent prefer activist judges over constructionist judges. For most Americans, “activist” when applied to judges is not an epithet. Analysis of the data reveals a strong connection between preferring empathetic judges and attitudes toward judicial activism. As shown in the graph below (which reports the views of those holding a preference regarding activism versus constructionism), those expecting empathetic judges are far more likely to endorse judicial activism. The figure indicates that 65 percent of those rating judicial empathy as very important also favor judicial activism. As the importance of empathy declines to “not very important at all,” the percentage preferring judicial activists plummets to 17 percent. Critics who equate judicial empathy with judicial activism are not far off the mark, at least according to these data. In making nominations to the U.S. Supreme Court, President Obama must balance a variety of expectations, many of which may conflict. In addition, given the bias toward minoritarianism in the rules of the Senate, Obama may well have to shoot for 60 votes, not a simple majority, in favor of his nominee. These various considerations make his decisions on nominations complicated and uncertain.
But if President Obama cares about what the American people want on the nation’s highest bench, he should return to the criterion of empathy. The strict, formal and knee-jerk application of law to the kinds of issues that reach the U.S. Supreme Court is unlikely to generate just outcomes, at least in the views of the American people. At present, many good legal technicians sit on Supreme Court. But what seem to be missing from the institution are judges with common sense. I realize that common sense is often not very common and on occasion doesn’t have much sense, but in the instance of the Supreme Court, common sense means using the law, where discretion is available, to protect the interests of ordinary people. My survey reveals wide support for this view of judging. That support extends across the partisan and ideological continua, and indeed, fear of judicial elitism (and of all forms of elitism in American politics) may actually have increased since the time of my survey. The president will surely take some heat from the far right if he nominates an empathetic judge. But the evidence of this survey is that he can rely on the American people to support judges who would add a strong dose of empathy to their judging.