Supreme Court nominations have been much in the news, let me join the discussion with propositions on: The role of the Court in our political system; critical qualifications for the Court’s intellectual leadership; the ideal make up of the Court’s membership as a whole, with emphasis on diversity; the critical need for open-minds and genuine independence; a warning to the so-called Originalists (‘Be careful what you wish for.’); and, finally, a discussion (inevitable in today’s environment) of Roe v. Wade, as confined by Gonzales v. Carhart.
I am fortunate to be able to discuss and refer to a recent and elegant short work by Justice Stephen Breyer, Active Liberty. Breyer brings some important credentials to the discussion, the most important being, of course, that he is a currently a sitting Justice. From my standpoint, his academic history is particularly relevant … although his principal interest as a tenured law professor was in the administrative law area, reflecting experience as a legislative aide to Senator Edward Kennedy. I mean to use Breyer’s text in several different ways because it illustrates, informs and illuminates several of the points, including the central point, I am trying to make in this material.
In the process of advancing my case, I hope to examine the “metrics” of the Court as an institution, including the desired qualifications of the nominees, the Court’s role in our political system, the appropriateness of what I will call the ‘Ginsberg Constraint” on the nominating process; the Court as a genuinely independent institution … and, finally, all this coming together in an analysis of the issues posed by the upcoming reconsideration of Roe v. Wade. (By “metrics” I mean the newly popular label encompassing all the facts and circumstances comprising a phenomenon, event, or specific tangible or intangible thing … stripped of cant, myth, spin, bias, i.e., what really is the thing, considering the whole and all its constituent parts.)
My qualifications: a Supreme Court law clerk; a practicing lawyer; a Bar Association president; a sub-cabinet appointee on the federal, state and (as outside counsel) city level; an “acting,” “adjunct” and “courtesy” (no pay) professor at prominent law and business schools; an inveterate author of legal (albeit non-constitutional) text books; a small business founder … as well as an aspiring, and largely unsuccessful, playwright; an aging rugby player; and a former platoon leader. My deficiency, readily admitted, is that I am not remotely a scholar in the area of constitutional law and history.
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