Qualities of a judicial appointment
Recently, the American embassy arranged for Mr Justice Tonio Mallia, a member of Malta's judiciary, to meet with the Chief Justice of the United States and Associate Justice Samuel Alito. Next month, the embassy is hosting in Malta the foremost Supreme Court advocate in the US, Carter Phillips, who will be making a presentation on the central role played by the independent American judiciary.
Since Justice John Paul Stevens has announced his retirement, President Barack Obama is in the midst of choosing, for the second time in his young Presidency, a new member of the highest court in the United States. Under the American Constitution, the President must satisfy a majority of the US Senate in making his pick but what are the qualities of appointment?
The legacy of Justice Stevens, himself, may be a good measure. Let us take a brief look at the Stevens legacy for what it may tell us about the necessary characteristics of his successor.
Scholars of one stripe or anther may see the record of Justice Stevens differently but no one doubts his competence or his commitment to public accountability. Justice Stevens required everyone, from the President to the most anonymous bureaucrat, to follow the law. He is well known for rejecting the military tribunal practices of President George Bush that were not authorised by Congress or consistent with the Constitution and treaty obligations but he also authored opinions requiring government agencies to stay within and honour the reasonable authority delegated to them by Congress. It was Justice Stevens who challenged the Bush Administration's failure to address global warming - not as a matter of politics but under the terms of the Clean Air Act, which expected the Environmental Protection Agency to regulate carbon emissions.
Malta is in the midst of public debate over whether the law should permit preferences for women. In the US, a similar civil rights issue emerged with respect to race. It was Justice Stevens, relying on Mr Phillips' advocacy, that drew a distinction between improper quotas and legitimate individual outreach. Without Justice Stevens, there would be far less racial, and because the principle carries over, gender diversity in American universities and employments.
Justice Stevens' love for the court and his enormous respect for the judiciary was seldom worn on the sleeve of his robe. The current court has been known to divide into factions but the President will likely find appealing a justice who is capable of finding a consensus by relying upon methods of interpretation that grapple, as Justice Stevens did, with the here and now consequences of judicial outcome rather than being premised upon pet notions of judicial understanding selectively applied.
Justice Stevens would have also kept the court out of the business of deciding Presidential elections. He understood the US Constitution to give Congress and the state legislatures, not the court, the responsibility for sorting out the dispute between Mr Bush and Al Gore. Justice Stevens knew that to substitute the court, as the slender five justice majority did, would bring disrespect to the role of the judiciary as an independent arbiter in a society that has much need of one. The lesson of that seems all the more poignant in these times of partisan hatreds unwilling to accept democratic outcome in favour of healthcare.
At present, every judge on the Supreme Court came from the US appellate bench. This is a recent phenomenon and many in America hope the President will widen the field so that highly-accomplished women and men in practice who are informed by wider life experiences won't be overlooked.
Justice Stevens was a protector of privacy from unwarranted government search and protected even the speech of students and government employees who, he reasoned, did not lose their rights to speech or religious belief because they enrolled in school or accepted a government job. Yet, Justice Stevens could, like the common man, draw distinction between speech that actually conveyed an idea and something far more inarticulate like flag burning. Of the generation that would intuitively grasp the meaning of the George Cross on the Maltese flag, Justice Stevens saw burning a flag more as tantrum than expression and depriving the national community of one unique symbol that can be uniformly respected.
For this criterion, permit me a personal anecdote. Justice Stevens occasionally taught antitrust at Northwestern University where I did my pre-law studies. As a relatively young freshman, I spent an afternoon wandering the halls of the old law building with its dark, foreboding wood-panelled walls. I was doing a paper on the perennial Illinois effort to substitute merit-based appointments for lower court or state judges for the ways of political patronage, which dominated Chicago, then and now. For me, this was a matter of youthful rebellion since my father, Walter Kmiec, was a Democratic Party official in a position to influence such "judicial" prizes much to the consternation of my late mother whose vote, she said, always cancelled my father's.
Quite by accident, I brusquely opened Justice Stevens' faculty office door thinking I would find a secretary but instead finding the man himself in pressed white shirt and trademark bowtie. Graciously, he invited me to sit down, saved me hours of research time and favoured the merit view, but in the end, admonished me to honour my father no matter what since, he said, all else has a way of taking care of itself.
Odd, how vivid this memory is, especially since my dad, Justice Stevens' junior by a few years, is near death with cancer. I doubt Justice Stevens would remember our encounter but, like every other law student who knew his warmth and personal interest in their progress, I do.
The President is known to convey to others a similar quality of kindness. He will know it when he sees it in another.
The author is US Ambassador to Malta.