George Will

WASHINGTON -- Responding to early 19th-century rumors that they drank excessively, the Supreme Court justices decided to drink nothing on conference days -- unless it was raining. At the next conference, Chief Justice John Marshall asked Joseph Story to scan the sky for signs of rain. When Story said he saw none, Marshall said: "Our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere -- let us refresh ourselves."

Americans have argued about the court's jurisdiction forever. They should not stop, especially now that the president has nominated U.S. Appeals Court Judge Sonia Sotomayor.

The 1987 fight over President Reagan's nomination of Robert Bork interred the tradition that the Senate, in evaluating judicial nominees, would not delve deeply into the nominee's jurisprudential thinking. Bork's defeat was unjust, but the new approach to confirmations was overdue, given the court's increasingly central role in American governance.

Before Sotomayor's confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit -- the propriety of New Haven, Conn., canceling fire department promotions because there were no African-Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion. A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court's dismissal of the firemen's complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved.

Stuart Taylor of the National Journal calls this "a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both." Taylor says that when "the circuit's more conservative judges got wind of the case," they sought to have it reheard by the full 2nd Circuit. They failed but successfully argued that the Supreme Court should take the case.


George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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