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Bar News - March 16, 2016

Opinion: My View on Scalia Vacancy: A Souter-Level Nominee Deserves Consideration


Whether you believe the United States Constitution is a living, breathing document or took its last breath the day it was ratified, you learned in high school that the Constitution provides that “the president shall nominate, and by and with the advice and consent of the Senate, shall appoint” judges of the United States Supreme Court. It is unlikely anyone ever said that language meant senate leaders could advise the President not to bother making a nomination because they would not even consider it, or that nominations in the last year of a president’s term did not count.

Currently, some argue that President Barack Obama should not nominate a replacement for Justice Antonin Scalia, and if he does, the senate should not consider the person nominated.

Having spent most of my professional life in the judiciary, I want to add my voice to those who say the Constitution should not be ignored, that a nomination should be made, and that the nominee’s qualifications should be considered.

In my view, presidents have a responsibility to make nominations to the Supreme Court whenever a vacancy occurs, and senators have a corresponding responsibility to give that nomination good faith consideration. These constitutional responsibilities do not go away in an election year.

What is not clear, though, is whether a good faith consideration of any nomination can take place now, in light of the statements of senate leaders and individual senators that a hearing should not even be scheduled.

I believe the American people want to trust our democratic system. The principle that government should be open and transparent is important to that trust. It seems to me a good faith public consideration of the qualification of a nominee to serve on our highest court is one way to confirm that principle.

We expect presidents to nominate individuals whom they admire, but based upon overall judicial qualification, not how they would decide specific cases.

So, how would I measure the qualification of the next person to serve on the highest court? I would ask how the nominee stacks up against New Hampshire’s own justice, David Souter. I served on the Superior Court when Souter was on that court, and when he was named to the NH Supreme Court. I did not always agree with him, but I admired his intellect, his knowledge, his analytical ability and his integrity.

Some think Souter was too liberal, others that he was too conservative. How do we even determine what those labels really mean? Maybe at times he was a little of both. But isn’t that what we want in a thoughtful Supreme Court justice? Souter was no ideologue. He was not driven by politics. He lived the law. He respected precedent, and he was a critical thinker. He decided cases based upon a review of the facts and an analysis of the law, not upon a personal notion of what the result should be.

That’s the kind of person I hope is nominated and confirmed to the United States Supreme Court.

So maybe this question should be posed to those who would withhold consideration: Would you deny a hearing and good faith consideration of the nomination of Souter to fill the Scalia vacancy?

Joseph Nadeau

Joseph Nadeau is an international judicial consultant and former New Hampshire Supreme Court Justice.

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