US: WEIGHING UP CHOICES FOR NEW SUPREME COURT JUSTICE

Plenty of advice for the president

Some say new justice should leave lawmaking to Congress; others want Bush to find a new O'Connor.
Buzz Scherr, a professor at Franklin Pierce Law Center in Concord, would love to see President Bush nominate a Supreme Court justice who has spent substantial time representing underprivileged citizens.
Manchester business lawyer Ovide Lamontagne wants a justice who can merge real-life experience and common sense with the practice of law.
Concord lawyer Martin Honigberg thinks Bush could avoid a political blowout by discussing potential candidates with ranking Senate Democrats.

With the resignation of Sandra Day O'Connor, the president is charged with the difficult task of choosing the next U.S. Supreme Court justice. Speculation about his choice has been rampant among court-watchers and political junkies, and local legal experts have plenty of advice for the president — not to mention his nominee.
Some said they want a justice who will adhere to a strict interpretation of the Constitution and leave the lawmaking to Congress. Others said Bush would do well to look for an O'Connor-like nominee: someone with case-by-case moderation, who has a varied background and who will diversify the bench as O'Connor did when she became the first woman justice in the U.S. Supreme Court.
Scherr, who has taught at Franklin Pierce for 11 years, said people's opinions about who should be nominated are rightly dictated by their personal values because they want to see themselves represented in the court. But the president must look beyond his own values, he said. “When you are the one appointing the judge, you probably have an obligation to pay attention to the fact that you represent all the people,” he said.
“You are the president of the entire United States, not just the conservative wing of the United States.”

For Scherr, who was a public defender for 13 years, the ideal candidate would be someone who has spent substantial time representing people who are considered underprivileged or underrepresented because of their race, gender, lack of housing or limited access to health care. But nominating someone with that background wouldn't be a good political move for Bush, Scherr said.
If it happened, “I'd be surprised,” he said.
“But I would love to be surprised.”

Lamontagne, a former Republican candidate for governor, said he wants a justice who can merge real-life experience and common sense with the practice of law to make rulings that are grounded in reality. He also hopes for an originalist, someone who tries to stick to the intent of the Constitution's framers.
“We need to move away from the activism that the judiciary has shown over the past two generations and to move towards a respect of the delicate balance of power between the two branches of government (legislative and judicial),” he said.
Almost all of those interviewed said that no matter who Bush chooses, a confirmation fight before the Senate is likely.
Lamontagne said he worries the Democrats will control the tone of the hearings.
“I'm concerned that the Democrats are going to use the nomination process and the advise and consent process for political purposes, which really have little to do with the credentials of a person the president may nominate,” he said.
The president can avoid a blowout by discussing potential candidates with ranking Democrats before nominating someone, said Concord lawyer Martin Honigberg.
“If there is no real consultation and just a presentation of someone they want to ram through, it's quite possible that the Democrats will fight,” he said.

Honigberg is the counsel for Planned Parenthood in Ayotte vs. Planned Parenthood, a case set to go before the Supreme Court this fall regarding a New Hampshire law that requires minors to notify their parents before having an abortion. Two federal courts have ruled the law must have a general health exception that allows doctors to ignore it if the girl's health is at risk. The attorney general has appealed those rulings.
O'Connor has been a swing vote in abortion issues, and the opinion of her replacement could prove crucial to the case. However, Honigberg said he doesn't think it likely the court will use the Ayotte case as an opportunity to re-examine abortion rights in general or challenge the ruling in Roe vs. Wade.
Chuck Douglas, a retired state Supreme Court justice and former Republican congressman, said he hopes the nominee will be willing to question and overturn prior rulings.
The court needs “a judge who understands that this is a Constitution and it is a legal document, so that it is not up to judges to amend it,” he said. “It's up to the people to amend it through the amendment process.”
He said the recent ruling allowing municipalities to seize private property and give it to private developers if the result will be an increase in tax revenue is “an example of a case that should be overturned, not followed” because it doesn't follow the Constitution and violates property rights.

Douglas called a March ruling that deemed it unconstitutional to execute someone for a crime he or she committed as a juvenile “totally garbage law.” The ruling was influenced in part by the European Union and the United Kingdom encouraging the United States to change. Douglas said that's wrong.
“It doesn't matter what everyone in the world is doing,” he said. “We have our own Constitution, and it says that you can take someone's life as long as they've been given due process of law, and I see nothing in the Constitution that says a 17-year-old is exempt from that law.”
He said he hopes the next justice won't be tied to trends in the court.
O'Connor has ruled with the majority in 5-4 votes on cases concerning affirmative action, the drawing of congressional districts, campaign finance law and the separation of church and state.
“In theory, (her replacement) could reopen a whole bunch of stuff that had been somewhat settled,” Scherr said. “There might be new passes taken at old issues which could be quite disruptive. Whether that's a good or bad thing depends on your political persuasion.”
Opinions varied on whether race and gender should be a priority in choosing the next justice. Scherr said picking someone who is not a white man correlates with picking someone who represents the underrepresented sector of the population. Douglas called race and gender irrelevant in this process.
“It's not ever meant to be a quota system,” he said. “I don't frankly care what the race, ethnicity or gender of the nominee would be.”
Concord lawyer Kenneth Barnes said ideally the justices would be 50 percent men and 50 percent women with racial percentages reflecting the makeup of the country. But that doesn't have to be the first priority in picking a justice.

“That's going to take some time to achieve,” he said. “I don't think any particular appointment needs to be designated as a woman's seat just because a woman is vacating it.”
Barnes said the president's main focus should be deflecting political pressure to make a thoughtful nomination of a justice who will affect generations to come.
New Hampshire Bar Association President Richard Uchida, a business lawyer, said the senators will be able to look past the ideology of the nominee if that person is well-respected by peers and has a distinguished and varied legal career.
No matter how honorable the candidate, Uchida said, the confirmation process will be messy.
In New Hampshire, a judicial screening committee originally established by former governor Jeanne Shaheen recommends people to the governor as nominees for judgeships at all levels of the state courts. Because the committee is bipartisan, the nominees are selected based on their merits, not on ideology, Uchida said. Although the American Bar Association can give advice, no comparable committee exists at the federal level.
Douglas and former state Supreme Court justice Sherman Horton, both of whom went through confirmation hearings on the state level, had some advice for those who could face grilling by the U.S. Senate. Douglas said nominees should be careful not to answer questions about their opinions on issues that they could later face in court, and senators should be careful not to ask those questions.
“They have to stay with general principles,” he said. “But if you say to a nominee, 'What do you think of the death penalty? What do you think about abortion? What do you think about affirmative action?' I think that is wrong because then, what happens is, if they give a detailed answer, they're disqualified from sitting on the case.”
Horton, who sat on the bench from 1990 to 2000, said the process is difficult, but the nominee will get a lot of coaching.

“Whoever's appointed is going to get some abuse,” he said. “That's just part of the system, so my advice is just to stay cool.”

Chelsea Conaboy
10 July 2005

http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20050710/REPOSITORY/507100340/1001/NEWS01

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