Half of the states in the United States no longer require high school graduates to have a basic knowledge of civics. One of every three Americans is unable to name the three branches of government.
Supreme Court Justice Stephen Breyer and retired justice Sandra Day O’Connor think this is a crisis.
They are working to try to educate young Americans about the role of courts in our society. Otherwise, they argue, we risk politicizing the courts and losing the checks and balances the founding fathers valued above all else.
Their campaign is timely because the nation is about to be embroiled in the politics of judging Sonia Sotomayor as a replacement for retiring Justice David Souter.
Many Republicans hope to use the debate as a wedge against President Obama and Democrats by arguing she is "too liberal" for the nation’s highest court.
Breyer and O’Connor say that such terms as "liberal" and " conservative" should not be applied to judges. Breyer said the media has contributed to the politicization of courts by insisting on analyzing court decisions by whether they are liberal or conservative.
O’Connor says that Americans have to realize that the nation is governed by laws and the Constitution and that judges must not be punished for deciding that lawmakers passed unconstitutional laws or that members of the executive branch of government violated the law.
Analysis of Sotomayor’s 150 opinions seems to indicate she would rule very much in the "liberal" vein of Souter, who was appointed by a Republican. That proves a very important point — presidents may try to nominate a judge they think will think like they do but very often they are wrong.
And that is why it is wrong to focus on the presumed politics of nominated judges. Very often those politics are unknowable. Much better to focus on judicial temperament, character, smarts and work ethic. (Every Supreme Court justice confesses to being stunned at the sheer volume of reading involved in the job.)
At 55, Sotomayor is experienced and has a lengthy record. Republicans will find things they like, and things they don’t like about it. The same goes for Democrats.
But as is always the case, such hot-button issues as affirmative action (her Hispanic heritage and past statements may suggest she is for it) and abortion (she has never directly ruled on the issue) will bring some to a fever pitch of excitement. Pro and anti groups are already planning their campaigns either to get her approved or to get her blocked.
But what we should be watching for is a clear indication from Sotomayor that she understands that every case is different and that every single defendant has the absolute right to a fair trial with judges who have not made up their minds ahead of time.
Impartiality — it is a distinct and unusual trait that we should demand of our judges and very often do not. More and more, we are demanding that judges be selected on whether they agree with us.
Breyer and O’Connor are correct — this is a dangerous trend.
If Sotomayor convinces us that she will be fair and impartial and that she will work hard on the behalf of the rule of law, then we must hope the Senate confirms her. Her personal opinions should not be at issue and should not decide whether she is confirmed.
Some have said they don’t want her on the court because Obama thinks she is empathetic and is able to understand what others’ lives are like. But those people do not understand what empathy really means. Nor do they understand what the law is. It is not an impervious thing; it would not split the baby in half.
We hope the hearings on her will be fair and impartial and interesting. We hope that senators who have said they don’t even want to meet her because they have already decided they will vote against her rethink their position.
And perhaps we’ll even get a good civics lesson out of the process.
(Scripps Howard columnist Ann McFeatters has covered the White House and national politics since 1986. E-mail firstname.lastname@example.org.)