Now in Legal Rebels:
Posted Dec 02, 2009 05:19 am CST
Regarding “No More Kabuki Confirmations,” October, about U.S. Supreme Court nominees and better ways of handling this challenge, I offer my view as one recently retired after 59 years’ law practice.
The obligation of the Senate is to determine whether it should approve or reject a president’s nominee. The purpose of its judgment is to discover whether the nominee, in addition to being literate and capable of comprehensible writing, will fulfill the oath to support the Constitution “without mental reservation or purpose of evasion.”
I think the chairman, before opening questioning to the body of senators, should query the nominee:
• Do you think you will be able to fulfill the obligation to judge all constitutional issues by the literal text of the Constitution, as accurately read in light of changed conditions, even if you find that meaning conflicts with accepted belief or past court decisions?
• Justice Frankfurter, in reversing his earlier opinion, wrote that wisdom should not be rejected just because it comes late. With you having necessarily formed opinions on constitutional issues, would such a prior opinion enable you to open your mind to new arguments and results of more recent study, so as to be willing to discard your present opinion?
• Inasmuch as your past opinions will not preclude you from giving impartial judgment on the same issues in cases to come before the court, there cannot be any reason for you to decline to state your present, nonbinding opinion on constitutional issues, is there?
This said, the chairman should state to the nominee: In view of these considerations, the majority of the committee have determined that if any nominee shall refuse to answer questions as to present constitutional opinions espoused by him or her, the refusal to give candid answers will be taken as a disqualifying factor and will lead to the rejection of your nomination.
To hold that committee members should not be able to determine a nominee’s beliefs on the correct answer to constitutional issues is to believe that the Senate should give carte blanche license to a nominee to decide according to personal philosophy without regard to the Constitution’s text.
Is there anything rash, unreasonable or contrary to constitutional absolutes about this view?
Carrol D. Kilgore
Regretfully, I have to take issue with the October cover. In particular, I was disappointed in your decision to use Japanese and quasi-Asian imagery to illustrate the headline: “No More Kabuki Confirmations.”
The two most prominent kanji characters floating above Justice Sonia Sotomayor bear no apparent relationship to the story—one references the Han dynasty and the other means book. I have to wonder if there was any consideration given to ascertaining the meaning of the characters, or whether they were simply chosen for their exotic appeal. I have a similar concern about the reference to kabuki theater in the context of the article itself.
Americans whose ancestors came from the diverse nations of the Asian continent are frequently subjected to trite adaptations of their cultural traditions. It is, unfortunately, the result of our mainstream society’s somewhat limited knowledge of the subject area.
I hope the ABA Journal will give attention to the meanings and effects of such cultural references with greater care in the future.
Floral Park, N.Y.
I respectfully disagree with Justice Antonin Scalia about where to find the brightest and best for Supreme Court law clerks (“Shedding Tiers,” October). I base my opinion on something I was told at a session of the Stanford Law School Board of Visitors a number of years ago. In a session on how to select members of the 1L class, we were told that the big difference between the elite law schools and the lesser ones was not so much in the top students, but in those in the middle and bottom of the class. He said that the best students at schools outside of the top ones would do well anywhere. It’s what a baseball manager would call the depth of the roster.
Regarding “Thou Shalt Not Sue,” October: Perhaps the debt collector who thinks he should be telling the debtors they should do what Jesus would do will be referring their creditors to Jesus’ message in Luke.
Luke 6:34—If you lend to those from whom you hope to receive, what credit is that to you? Even sinners lend to sinners, to receive back as much.
Luke 6:35—But love your enemies and do good and lend, expecting nothing back; and your reward will be great, and you will be children of the Most High; for he is kind toward the unthankful and evil.
Or perhaps the debt collector will be advising the debtors to file bankruptcy since the Old Testament law (Deuteronomy 15:1-2) states that every seven years all debts must be forgiven, which is the basis of our bankruptcy law.
“Give Chronology a Timeout,” October, is all true, except I quibble with one point. Jim McElhaney’s character Angus says to start with the opening statement; but in truth, the place to start is at the opposite end: closing argument. Only when you know exactly and entirely what you want to argue at the end will you be able to orchestrate the rest of your trial presentation.
James J. Allen
I was amused and bemused by “L’Avvocato,” October. It was, of course, a very nice human interest story; but upon reflection, I couldn’t figure out what was so unusual about Tina Maiolo’s story.
Nearly everyone I’ve met who works in international matters, including hundreds of American lawyers overseas, has similar if not more intriguing stories to recount. The last line, “Fortunately, for this leading lady, those attributes already are part of her package,” was perhaps more appropriate for an article in People magazine than the ABA Journal. It really seemed to be an inappropriate form of thinly disguised advertising for one specific lawyer.
Howard M. Liebman
I enjoyed “Where the Work Is,” August. I am a general practitioner and find myself involved in many of these different areas of the law. Alternative dispute resolution is economically feasible but in my opinion does not guarantee a fair decision. I prefer a jury—but then again I am not paying the bill.
Florham Park, N.J.