Saturday, August 8, 2009

Sotomayor takes Obama to Court

Later this morning Chief Justice John G. Roberts, Jr., will administer the oath of the office of Associate Justice to Sonia Sotomayor (right). The event will take place at the Court's marble edifice (below) -- a choice of location that reflects President Barack Obama's understanding both of the separation of powers and the importance of symbolism.
In recent years confirmees have had to take part in ceremonies at the White House. This departure from prior practice has been cause for concern among some on the Court. Just weeks after the inauguration at which Roberts swore in Obama, the Justice who administered the oath to Vice President Joseph Biden, John Paul Stevens, made a very public statement of concern.
The date was February 26. The place, Washington's Newseum. The occasion, Stevens' discussion with Cliff Sloan and David McKean, the authors of The Greatest Decision (2009), an excellent social history of Chief Justice John Marshall's landmark decision on judicial review, Marbury v. Madison (1803). Stevens used the opinion's treatment of the judicial oath as his springboard to discuss where a Justice's oath should be taken. Here's a transcription of the C-SPAN video of what Stevens, appointed in 1975 by President Gerald R. Ford, said:

[I]t's a very personal thing, but – rereading the opinion, the first part on the oath stresses the importance of the commission that was withheld or was not delivered to Marbury. In the end of the opinion, one of the reasons given by John Marshall for finding constitutional objection to their appellate jurisdiction was the nature of the oath that the judges had to take, and the fact that they had to solemnly swear to administer justice and so forth, and 'according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.' And he stresses the fact that because they take that oath to uphold the Constitution, obviously the Constitution has to be a document of special importance.
Well, these two aspects of the case brought to mind my own installation. When I was installed as a Justice of the Supreme Court, President Ford came down to the Court, and moved the admission of the Attorney General who presented the commission to the clerk, and then the oath took place. ... When Justice O’Connor, who was the next appointment, was installed, President Reagan came down to the Court – we take actually two oaths, there is a statutory oath and a constitutional oath – and one of them was traditionally administered in the Conference Room, and the other in open court as part of the ceremony. And President Reagan came to the administration of the oath in the Conference Room.
And I’ve always thought those two examples of the President coming to the Court for that important event was a demonstration of the separation of powers involved, and the fact that after the appointment has taken place, the Justice is on his own or her own, and is no longer representing the political branch of the government. ...
President Reagan, when Warren Burger retired and William Rehnquist became Chief, and Justice Scalia was appointed they had the swearing-in at the White House. They also had a second ceremony at the Supreme Court. And also, after that, when Justice Kennedy was appointed, the first ceremony took place at the White House and not at the Court. And I was troubled by that as incorrect symbolism of the division of power between the separate branches.
So when the following four nominees were installed, with the same procedure, going at the White House, I did not attend the ceremony when David Souter or Clarence Thomas or Ruth Ginsburg or Stephen Breyer was installed. I thought that we should make a change in that regard. And because I didn’t, that fact that I didn’t go, I think will suggest to you I felt rather strongly that there is important symbolism in the way in which this terribly important oath is administered and the place in which it’s administered.

Stevens did go to the White House in 2005, when as the senior Justice following the death of Chief Justice William H. Rehnquist, it fell upon him to administer the oath to Roberts. But his concession then did not ease his mind. Stevens told his Newseum audience that he had raised the issue publicly

because I’m hopeful that in the future, Presidents may consider the importance of coming to the Court on this occasion, and drawing the very fine and important line between the appointment process, which is political in character and involves the exercise of discretion, and the very separate status that is created after the appointment process has taken place.
Two days after the appointment process (prior posts) ended with the Senate's 68-31 confirmation of Sotomayor, that "very fine and important line" is back in place, a welcome Presidential recognition of the federal judiciary's independence from the political branches.
It is on such niceties that the rule of law rests.

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