What Does the Public Want In A Justice?

By Scott Lemieux

It has become common for pundits to bemoan the lack of substantive content in the answers given by nominees to the Supreme Court at their confirmation hearings.   Indeed, the extent to which nominees have perfected the art of making sure the hearings yield little useful information about their judicial philosophies once provoked the current nominee to criticize the process (criticisms she has revoked now that she is a nominee herself.)   

Why have the hearings become so bland?   Although the broadly worded clauses of the Constitution that generate the most controversy permit multiple reasonable interpretations, and hence allow a lot of judicial discretion, the central theme of contemporary hearings is that Supreme Court justices simply apply the law (or, in current Chief Justice John Roberts's words, act as a "neutral umpire.")   The assumption of nominees must be that -- whatever the truth -- the public will not accept the idea that a judge's values may affect their decisionmaking, even if most legal observers are well aware that "the law" in itself cannot determine how judges will choose among multiple interpretations.

According to John Sides, however, the extent to which the public is unwilling to accept a more complex view of judicial decision-making is actually highly questionable.   Whatever assumptions are made by pundits, the public largely accepts the idea that empathy might inform judicial decision-making:

The Washington Post tells me that in today’s hearing, Elana Kagan “sidesteps empathy question, says ‘it’s law all the way down,’” which leads the reporter, Paul Kane, to say “So much for the empathy standard.”

I know some people who will be disappointed. The American people. About 68% of them, to be precise. That is the percentage who said in a 2009 survey that it was “very important” for Supreme Court justices to “be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.” Only one other quality out of a list of 12 — “Uphold the values of those who wrote the U.S. constitution long ago” — was judged very important by more respondents (74%). Only 8% of the sample said that empathy was not important at all. Empathy also attracted the support of both parties: 77% of Democrats and 61% of Republicans said that it was very important.

It is understandable, following the defeat of Robert Bork, that nominees have become risk-averse when it comes to making controversial statements.    But this data suggests that they may have more leeway than current practice suggests.   

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