Monday, April 26, 2010

Supreme Court: Short List to Replace Stevens (Part 3: Leah Sears)

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]

In the first 2 parts of this series on New York Court Watcher, we looked at Elena Kagan and Diane Wood. (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010; Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010.) Let's now take a look at another possible nominee who was under consideration last year and is, by all accounts, being considered by President Obama this year as well.

Leah Sears

She is a former Chief Justice of Georgia, a position she held until her retirement from the state's supreme court in June of 2009. Sears is the first African-American woman to hold that position. She is also the first woman and youngest person ever to sit on that court. (She was originally appointed in 1992 at the age of 36 by Governor Zell Miller; her colleagues chose her as their Chief in 2005.) She now practices law at a private law firm in Atlanta.

Sears is very well respected by those who study state supreme courts and, in fact, has long been considered one of the stars of the American judiciary. For example, she was invited to be the 2007 Brennan Lecturer at NYU Law. She's a graduate of Cornell, Emory Law and Virginia graduate law.

[Sears is one of several exceptional woman chief justices-- present and immediately past--heading state high courts around the country. In a post on New York Court Watcher last year, I identified 9 of those state chiefs who I truly believe would make a much better U.S. Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.
Disclosure: Sears is also on the board of State Constitutional Commentary, an annual issue of the Albany Law Review. I am the editor of that issue, and I invited her onto the board because I think very highly of her.]

Political considerations:
Sears is a Black woman. In the crass casual lingo of diversity/multiculturalism/affirmative action supporters, she is a "two-fer." For such supporters, that's a positive. For others, that's totally irrelevant to merit. For yet others, at the opposite end of the political divide, that's a negative. For them, it's a near sure sign that merit is being subordinated to some highly suspect considerations.

Worse than that, as a purely partisan electoral matter, if President Obama picked Sears, it would be more proof to many voters that he and his party favor minorities and women to the disadvantage of everyone else. This is no small consideration for Obama and the Democrats who are increasingly unpopular with white men.

On the other hand, Sears is another kind of two-fer that would be appealing to some of Obama's staunchest opposition. She is a Southerner and she graduated from a Southern law school--Emory, in Atlanta--rather than an Ivy League institution. (Translation: rather than a Northeastern, very Jewish, very liberal school--nearly as anathema as the New York Times.)

But whatever good will this might engender for Sears is more than counterbalanced by her reputation among Georgia Republicans as an "activist." (Translation: she's a liberal, or at least not as conservative as they'd prefer.)

In fact, Governor Sonny Perdue and the state Republican party vigorously opposed Sears's reelection to the court in 2004. They failed. But their efforts may well be a preview of Republican senators' opposition to her as, you guessed it, one of those radical, liberal, activist judges who make law, not apply it.

Undoubtedly, the Democrats would deny that Sears is a liberal (an implausible denial), the Republicans would be aghast that she is (a phony, melodramatic outrage), and the debate would degenerate into grade school-level sophistication about the role of judges. They make no law. They make no policy. They simply apply what the legislature has passed or what's written in the Constitution. They're just automatons, robotically applying law to facts to get a predetermined answer. A judge's experience, perspective, and wisdom play no part, and shouldn't.
If you doubt the scenario, recall the nonsense asked of Sonia Sotomayor at the Senate confirmation hearings, and her equally nonsensical responses.

To be sure, Sears has authored opinions that no doubt endear her to Obama and would do likewise to liberal Democrats generally. And yes, those same opinions would frighten the bejesus out of conservative Republican senators (at least ostensibly for the crowd back home). For example, in Wilson v. State (2007), Sears wrote the opinion for the Georgia Supreme Court to invalidate, as excessive, a 10 year prison sentence imposed on a 17 year old African-American male for "child molestation." He had engaged in consensual oral sex at a party with a female schoolmate who was 2 years his junior.

In another case also entitled Wilson v. State (1999), Sears argued in dissent that execution by the electric chair is cruel and unusual punishment. Two years later, in Dawson v. State (2001), her colleagues adopted her view and outlawed electrocution under the Georgia state constitution.

In State v. Davis (2008), Sears dissented when her colleagues denied the habeas corpus petition of a convicted cop-killer who was seeking a hearing to present evidence that he was actually innocent. This is the famous/infamous Troy Davis case in which former President Jimmy Carter, former FBI Director William Sessions, Archbishop Desmond Tutu, Pope Benedict, Amnesty International, the European Parliament, etc., etc., have pleaded with the courts for a new hearing. After several denials in state and federal courts, including the U.S. Supreme Court, the latter court finally yielded in August of 2009 and ordered a federal trial court to consider the evidence of innocence.

In Powell v State (1998), Sears was part of a majority that held that Georgia's law making sodomy a crime--regardless if consensual, adult, and private--violated the state's constitutional right to privacy. Sears wrote a separate concurring opinion elaborating on the judicial duty to protect individual liberty against legislation based solely on the majoritarian notions of morality, rather than on some actually compelling government necessity.
[N.B. The Georgia law in question was the same one that the U.S. Supreme Court upheld, as a matter of federal constitutional law, in that dreadfully embarrassing, homophobic 1986 decision in Bowers v. Hardwick. The 5-4 majority of the nation's high court allowed states to criminalize consensual adult intimacy between gay partners on the preposterous ground that the Constitution did not grant a fundamental right to "homosexual sodomy." Eventually, five years after the Georgia court's Powell decision, the Supreme Court followed suit, emerged from the Middle Ages, and in Lawrence v. Texas (2003) overruled its then-17 year old Bowers disgrace. It did so along the same lines argued by Sears and her court.
That will hardly, however, placate conservative Republican senators who view the recognition of gay rights as being equally un-American and un-Godly to a woman's right to choose, the separation of church and state, and health-care reform.]

In any event, that's a sample of Sears's opinions that will certainly warm the cockles of liberal hearts but infuriate many Republican senators. If Obama nominates Sears, he's almost certainly looking at a political battle. Sears is surely qualified. If merit were the only consideration, there would be no hesitation to nominating her. But political considerations are always at least as important as merit. Usually more so.

As with Elena Kagan (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010.) and Diane Wood (See Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010.), merit and Obama's actual preferences may well give way to purely political calculations. Both the Senate hearings in the short run, and the elections in November.

There is no shortage of strong potential nominees, however. Some are even non-Northeastern, non-Jewish, non-minority, non-"gay activist" males who would be far more palatable to Obama's opposition. We'll look at some of them in upcoming posts.

Of course, Obama may announce his nomination very shortly. If he does, we'll shift our focus to that nominee's record.