Saturday, September 26, 2020
Harvard's Noah Feldman thinks his friends and former co-clerks are "brilliant" and should be on SCOTUS
That's the short version, I think. (I could count on one hand the number of "brilliant" people I've met in the legal academy, but maybe I don't use it in the hyberbolic way Yale graduates do!) Joking aside, there's no doubt Judge Amy Coney Barrett is a smart and capable lawyer. But Professor Feldman knows as well as I do that those are a dime a dozen, and that the only reason she was chosen from among the many dozens was because she is a religious conservative whom religious conservatives expect will exercise her inevitable discretion in a way congenial to their moral and political objectives. Why not educate the public about what the Supreme Court really does and why the moral and political views of the nominees matter, instead of offering up misleading bromides like she "will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed"? All judges who act in good faith and with adherence to their "principles" will nonetheless have to make moral and political choices on the Supreme Court. Once we get over that low bar of acting in good faith in accordance with "principles," the real question is what will the nominee's moral and political choices be?