Conversations around the office watercooler have predictably covered Scalia and his possible replacement. What sort of judge needs to fill that vacancy? What sort of presidential candidate, if elected, would select that sort of judge?
Here is what I demand of the law, in order of importance.
#1. The Law should be confined within its authority. No law should be created in excess of the authority that the legislating body has. Thus, no legislature can restrict freedom of speech. No court can create law. No regulatory agency can enforce a law that a legislature has not passed by the prevailing legal process.
#2. The Law should make sense. It should have a purpose. That purpose should be a public good. That law should predictably and efficiently lead to that public good. It should be consistent from top to bottom with other laws past and present, federal, state, and local. A law that is mandatory in one place while prohibited in another does not make sense. If four Supreme court justices declare a law is one thing, while 5 other Supreme court justices declare it to be something entirely different, then that law inherently does not make sense. The most educated and experienced judges in our land, selected and vetted by the most deliberative process we can devise, should be in agreement about what the measure of the law is 99% of the time. A 5-4 decision is a verdict against our system as corrupt and lacking in sense.
#3. The Law should apply equally to all citizens, without regard for their wealth, station, race, insanity, or other forms of bias or corruption. When O.J. Simpson can hire a legal dream team to drag his trial out for months and gang-bangers get the death penalty in trials that last only 1 day, the system is NOT being applied equally. When a corporate CEO can make a choice to defy the law and his company pays his fine if he gets caught, the law is not equally applied. If there even is such a thing as a “hate crime” then the law is not equally applied.
#4. The Law should be just. If and only if it is first confined and sensible and equally applied, then it should also be just.
Fat chance I will ever live to see any of those things. But a guy can dream.