The Volokh Conspiracy

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What Sort of Justice Should You Want on the Other Side?

Noah Feldman explains why liberals should want someone like Amy Coney Barrett on the Supreme Court


It is natural to want a President to appoint justices that share your jurisprudential views. Originalists want Presidents to appoint originalist justices. Living constitutionalists want Presidents to appoint living constitutionalist justices. And so on.

But when the President is from the other party, or is likely to pick a justice with a different jurisprudential philosophy, what sort of justice should we want the President to pick? An excellent one, or so suggests Harvard's Noah Feldman in his recent column, "Amy Coney Barrett Deserves to Be on the Supreme Court."

As Feldman explains, he would prefer a justice that shares his legal views, but given that President Trump is going to appoint a conservative, he explains why liberals should want it to be someone like Judge Amy Coney Barrett.

Writes Feldman:

Some might argue that you should want your probable intellectual opponent on the court to be the weakest possible, to help you win. But the Supreme Court is not and should not be a battlefield of winner-take-all political or ideological division.

It would be naïve to deny that there is plenty of politics in constitutional interpretation. There are winners and losers every time the justices take a stance on an important issue of law. Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics. It follows that the social purpose of the Supreme Court is best served when justices on all sides of the issues make the strongest possible arguments, and do so in a way that facilitates debate and conversation.

As Feldman explains, this is why he believes Barrett will be a good justice, albeit one with whom he will regularly disagree:

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. . . .

it is better for the republic to have a principled, brilliant lawyer on the bench than a weaker candidate. That's Barrett.

I agree with Feldman. When Democrats are selecting judges and justices, I want them to select the smartest and most principled nominees (and I have consistently argued that such nominees should be confirmed). Given the ideological makeup of the courts will be determined by the ideological preferences of nominating presidents, we are all better off when judges, whatever their underlying jurisprudential philosophies, are thoughtful, intelligent, principled, and discerning. Judge Barrett clearly satisfies that standard, and I hope future nominees will as well.