A Listening Heart
Historically, presidents and their advisers seem to ignore leadership qualities in choosing Supreme Court nominees. During the past thirty years, they have concentrated mainly on what the nominee's vote will be on abortion rights, which is understood as the bright line between liberals and conservatives. The more "moderate" Justices, such as O'Connor and Kennedy, who swung to the left on abortion, have been viewed by most commentators as exercising the most influence over the Court because of their decisive influence on that issue. Without discounting the abortion vote, to pick an effective Justice, President Obama should not ignore the leadership qualities of his nominee.
This is because Justices, like all human beings, can be influenced by each other. But they will be influenced only by peers with strong leadership qualities of both heart and mind. Like King Solomon, an influential Justice will be able to make persuasive arguments not only because she can craft a compelling logic but also because she has the ability to listen with her heart. Like Justice Cardozo, an influential and admired Justice should be able to understand the aesthetic qualities of right and wrong and the common good for the people of this country, not just able to apply a rational principle to a pattern of facts.
The leadership quality of independent judgment is also essential for a Justice to write opinions that will be respected and followed by the lower courts and the public. All Court decisions are not respected. For example, although the 5-to-4 Bush v. Gore decision is law that must be followed, the convoluted opinion is generally viewed as a political or ideological decision and is not persuasive law to anyone other than those who share the ideology.
President Obama wants to select a Justice who cares about the impact of Supreme Court decisions on the well-being of people and is not just fixated on abortion. For that Justice to be a leader in the Court, the President should pick someone who not only has the ability to apply strong logical analysis, but also has demonstrated human understanding and concern for the common good. That kind of Justice will be persuasive to other Justices and will draft decisions that will be respected by all of us.
Note: This post was co-authored with Max Maccoby.
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