I find interesting the recent reporting about President Obama's predilection for a pragmatic Supreme Court Justice.

Pragmatism is a virtue to be sure--a practical approach to problem solving. But it is a proper judicial virtue? After all, it is the judiciary's function to state what the law is, not what it should be. If the Supreme Court is to be a nine-member, unelected yet heavily-vetted and politicized legislative body, then a pragmatic justice is not a bad thing. But if the Supreme Court is meant to be the ultimate arbiter of what the Constitution is, then I would say you do not want pragmatists. Rather, you might prefer an idealist.

But aren't idealists as likely to put their own spin on what they WANT the Constitution to be?

I prefer judicial humility to pragmatism.

[And there are two sides to Obama's pragmatism, his pick might be pragmatic, but that doesn't guarantee that the pick's opinions will also be pragmatic. Perhaps his most pragmatic pick will be an idealist.]

Humility is a more judicial virtue. The judiciary is, after all, the third branch of three.

I don't think you necessarily want an idealist. A judge isn't looking at how he wants the law to be, he's looking at what it is. So even if you think that XYZ would be the best solution, you have to work with what's actually there.

I think that "pragmatist" is often used as code for "results-based ruling", though, which is definitely not a good thing.

You might view an idealist as someone who will not compromise meaning in order to obtain a result. A pragmatist, by definition, is placing results ahead of means and meanings.

For example, a pragmatic solution to crime might be allowing summary executions of those arrested by police. Such a decision would serve the retributive and deterrent functions of criminal law at low economic cost. Yet it would be a perverse rule under our system of government.

I believe Scalia is an idealist. I disagree with him on many points, but he is an idealist.

I just wanted to note here that this discussion, and a very interesting one, has taken a different turn than I expected. When I mentioned pragmatism in my previous post I wasn't echoing Obama or implying the kind of discussion now occurring.

Rather I was referring to a trend that, in my opinion, I saw far too often in academia of considering a solution that is theoretically neat and tidy, interesting in terms of values or ideals, but generates rules that are difficult to follow in practice or result in significantly poor doctrinal outcomes.

That said I think pragmatism, in the theoretical sense, can be a good thing for a jurist. It seems a bit misleading to decry SCOTUS justices from considering what the law should be in a general sense.

They do interpret what the law is, but they do so by using a single case to clarify the law as it will apply going forward in a vast number of cases via opinions that are only subject challenge by themselves at a later date or by another branch of government.

On a court where idealism and theoretical arguments are already well represented, it would be nice to have a pragmatic thinker who would consider the results that would occur on a nation wide scale. That way when the Court states what the law is, they have considered whether or not the law that, in practice, results from the decision will actually be what the court says the law actually is.

In other words, a pragmatic approach may help ensure that the law as experienced by lawyers and clients on a day to day level is consistent with what the often theoretical and policy oriented opinions say the law is.

Isnt' that a good thing?

I suppose that raises the question of whether idealism and theoretical . . . ism is actually well represented. Kennedy v. Louisiana seems quite focused on the practical ramifications of extending the death penalty to child rape cases, but it's entirely possible I'm not reading well. Is resort to "evolving standards of decency" pragmatic or idealistic? Is SCOTUS too pragmatic or not enough pragmatic? (I'm asking sincerely.)

[This message was edited by David Newell on 05-05-09 at .]

Case law in the realm of search and seizure has long been pragmatic. As in, "What sort of rule can easily be understood and applied by an officer under pressure to decide what to do?"

The recent case overruling a search of a vehicle incident to arrest diverted from such an approach, returning to an idealistic view of the Fourth Amendment. That idealism is likely to create confusion and, ironically, an unclear understanding of what is reasonable.

Oh the humanity!

Bork is only 82.

Admittedly, in most work places, a new-hire who is 82 would seem a bit long in the tooth, but on the Supreme Court he'd be about in the middle.

Here's another thing to consider: Joe Biden, who is a great Constitutional scholar, and judiciary expert, said the first time Bork was nominated that he was super qualified. That should count for something with Obama.

Why not then Joe Biden?

My vote is for Pepe Le Pew. As long as we are going accept looking to other countries� laws to decide what our Constitution means, I at least want someone that has the accent!

Why not someone who has actually tried cases in a criminal courtroom, or a trial level judge accustomed to making decisions at game speed?

Our own John Bradley or Cynthia Stevens Kent (former judge from Tyler) would be awesome picks.

Cathy Cochran, except we can't spare her from the Court of Criminal Appeals. But she would totally fit in at SCOTUS. And it would be nice to catch some of her Cochranisms in national opinions.

And just in case the White House is perusing this forum for suggestions, here is a link to the last time we discussed the matter.

[This message was edited by JB on 05-05-09 at .]

Thinking on it some more...

The Miranda Rule was not, initially, a constitutionally mandated creation. It was a pragmatic, bright-line rule designed to protect the Privilege Against Self-Incrimination. We all have to admit that no where in the Bill of Rights can anyone find or divine those warnings. The warnings, have, over time, however, entered into the fabric of the constitution. So, now they are considered sacred.

But, the truth is that those warnings are actually over-protective. There certainly are cases in which the absence of the warnings or the delivery of defective warnings caused no constitutional damage to the Privilege Against Self-Incrimination. Yet, SCOTUS has maintained the rule because it has been an effective, bright-line rule to apply to all law enforcement. And that led SCOTUS to reject any alternatives a few years ago in the Dickerson case.

So, why not stick with the bright-line rule for vehicle searches incident to arrest? Is it because the bright-line rule is only acceptable when it works to expand rather than restrict a constitutional right?

I nominate Judge Reinhold. He's already used to being called judge.

He'd be as good as any of the names I've heard in the press.

Anyone who has been on a farm long enough knows that cream is not all that floats to the top.

For a view on limiting SCOTUS service, try this provocative article:

http://www.guardian.co.uk/commentisfree/cifamerica/2009/may/04/supreme-court-david-souter

Is it so outrageous?

JAS

I like the "too comfortable" angle. They should give them really crappy chairs. With staples on them.

On a more serious note, I think picking clerks out of law school might also contribute to the more byzantine opinions. Getting experienced practitioners instead might cut through some of the BS.

I never understood why the least experienced and practical attorneys assisted appellate judges. Are their writing and research skills combined with their idealism enough?

I do like what I heard, if true, about Justice Scalia hiring two clerks, one with a similar philsophy to his and another the polar opposite. That should stimulate fascinating talking points. But again, I would have thought experienced, pragmatic attorneys would be a greater asset.

JAS