What Kinds of Justices Should We Want?
In May and June of 2003, speculation swirled that Chief Justice William Rehnquist or Justice Sandra Day O'Connor might soon resign, giving President George W. Bush his first opportunity to appoint a member of the Court (the anticipated resignations did not happen, of course).1 Rumor had it that the Bush administration was compiling a short list of candidates. Two Democratic senators, Patrick Leahy of Vermont and Charles Schumer of New York, responded with public letters to the president urging him to nominate a moderate if a vacancy arose. “[C]onsultation and moderation” should be the “two guiding principles for selecting judicial nominees,” wrote Leahy.2 Schumer said that he would apply three criteria to nominees: “excellence, diversity, and moderation.” “When it comes to moderation, … I do not want judges who are too far Left or too far Right, because I believe judges who come to the bench with extreme ideologies are likely to make law, not interpret it.”3
The letters from Leahy and Schumer raise an important question. Suppose that the Senate succeeds in revitalizing public deliberations about Supreme Court nominees. Citizens could then expect to