In the days after Justice Antonin Scalia’s passing, many commentators have rushed to speculate about who President Obama may nominate and what reaction the pick will engender on Capitol Hill and in the public. I have been disappointed that many who work in progressive public interest law – whether in the plaintiffs’ bar, at a public interest organization or as a public defender – have rushed to engage in the same armchair sophistry, rather than articulate the characteristics they would want to see in any nominee. It would seem prudent to demand that any nominee be willing to give workers, consumers and criminal defendants of modest means a fair shot at justice.
Suitable questions to seek answers could be: Does this person prefer to dispose of cases at earlier stages of litigation or, true to the country’s rich legal history and the Seventh Amendment, prefer to have matters reach a jury at trial? Is this person willing to permit broad enforcement of arbitration clauses, which allow corporations to have legal disputes resolved extrajudicially rather than in a court of law? Does this person support more lenient pleading standards to afford plaintiffs greater access to the courts? How does this person view class actions? If a potential nominee’s background does not lend itself to answers favorable to workers and consumers, or to easy answers one way or the other, then that nominee should be viewed, presumptively, with skepticism.
As for a potential nominee’s biography, I believe it would also be wise to consider whether the person’s professional background is similar to that of those already on the court, or whether the person would add a distinctive professional history. Senator Elizabeth Warren and the Alliance for Justice have offered good guidance on this front.