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More Commentary on How to Judge a Justice

As suspense grows over the naming of President Obama's Supreme Court nominee, so too does discussion in the blogosphere about how to judge the future Justice. For all the talk of nominating a woman, a recent Gallup poll shows that only 38 percent of women surveyed believed that appointing a woman to the bench appointment is "essential" or "a good idea." Anne Skove, of Court-O-Rama, ponders the reasons for the low percentage. Sure, women are more likely than men to want another woman on the bench -- only 24 percent of men polled thought appointing a woman was "essential" or "a good idea" -- but it's still a surprisingly low number.

But what else do folks want to see in a Justice? Anne mentions one commentator at Salon who argues that empathy is most important quality in a candidate. Eric Turkewitz agrees, though he's got a better name for this metric: "the tissue box test." He writes:

I want a nominee that knows what it's like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it's like to see real people -- not political philosophies or corporate giants trying to add a few cents per share to their earnings -- in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it's like to be the underdog against corporate or government interests.

I want a nominee to know what it's like to make the rent. To pay an employee. From their own pocket and not someone else's. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Similar to the tissue box test, Scott Greenfield of Simple Justice offers up the "trench lawyers" test, endorsing those candidates who know about "raw human need and the law's rough edges":

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn't limited to the defendants. We have philosophies, but we live realities.

And by the way, if the President or his advisers believe that trench lawyers or "tissue box lawyers" don't have the analytical skills or writing ability to pass muster on the bench, Turkewitz and Greenfield prove them wrong with their posts. Don't miss them.

Posted by Carolyn Elefant on May 13, 2009 at 03:37 PM | Permalink | Comments (3)


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