When “… the world makes you king for a day, just go to the mirror and look at yourself, and see what that man has to say. For it isn’t your father or mother or wife, whose judgment upon you must pass; the fellow whose verdict counts most in your life is the one staring back from the glass.”
It is the predicament that disappoints us in how Supreme Court justices turn out. We must remember that the Rehnquist Court had 7 justices that were appointed by Republican presidents, yet it disappointed stanch conservatives. The cry about legislation from the bench comes from people who don’t believe in judicial independence from politics and religion. They know they are right, but justice is never completely sure. When a choice exists, ambiguity sanctions personal feelings about likely outcomes.
Does the nominee believe that the rules for morality reflect an absolute truth that everyone innately knows and that all they have to do is to decide by the facts? The Constitution alone cannot specify what is right. The law is great, but it cannot avoid a moral underpinning.
Morality is more than feelings and conscience. It requires abstract reasoning. Young children have to be presented with black or white choices. Adults must learn the nuanced morality of cooperation, the opinions of other people, and situational relativity.
“It’s the law”, means that a judge’s thoughts and feelings should not matter. A cold, calculating computer could replace such a justice. Does a Supreme Court nominee have a conscience, feeling empathy, guilt, shame, love, and compassion, or is she just a legal machine? Does one become a justice because they have a conscience? Do they find one? Do they lack one?
We used to believe that torture was morally wrong and that by permitting it we would give license to others to treat us in the same way. In law, it depends on the division of power in government and the situation. The Constitution disperses power between the legislative, executive, and judicial branches, but it does not clearly describe every situation.
Social scientists find that one in twenty-five people have no feelings to get in the way of their goals. They have no conscience. It can be advantageous. Often the ones lacking feelings are leaders and con men who use other people for their own benefit. They talk about love and their feelings because deep down inside they know they have none.
Individualism runs counter to empathy and interrelatedness. Emotional conscience is not just about the self. It is connected to the “other”. Public servants forgo salary, prestige, and sometimes career to side with the powerless against the powerful. Supreme Court justices have the authority to make rules and the responsibility to follow them. Is it the original application of the Constitution, or its meaning at the present that matters most?
Picking a Justice
Qualifications are more than academics and elite education. Are the views of the nominee constitutional or political? Will the President nominate a Supreme Court justice who is “like him”, shares his values, and can be sold to the Senate? The best manager is not the person who gets things to turn out his way. Diversity helps to keep the Court in touch with ordinary life.
The new person on the bench will associate with the other justices and law clerks. Over time they are likely to be influenced by the viewpoints of their colleagues. They become more than themselves. They must be more than the President’s choice. They have to be respected by the other justices and never become personally critical of them.
Personality rules how a Supreme Court justice will fit in. Is he a smooth, persuasive orator? Is she an introvert or extravert, friendly or reclusive, a charismatic leader or enigmatic? Is he polite and respectful? Will her decision be based on one big thing or lots of small things? Will he become prone to changing his mind, compromising, or adamant and rigid in his positions? Will she take a middle-of-the-road, split-the-difference approach? Exceptions to the rule invalidate decisions that are narrow. Ambiguity and unintended consequences compromise broad sweeping decisions.
Will the Senate require a Supreme Court nominee who will take an “exact text-based original-intent” approach to the Constitution and practice judicial restraint, ruling only on the law without regard to justice? Whose intent? Is it the writers or those who ratified the Constitution that matter most?
It is a myth that only liberal courts are activist. Restraint strikes down reasonable acts of Congress based on the wording of the Constitution. Activism is any departure from the original Constitution, even if in the public interest. It is proper to try to imagine what the Founding Fathers, the writers of the Constitution would think, but it is a reach too far to think that they could have imagined today’s world.
Perhaps the Constitution was written with generality because the alleged “infallible” Founding Fathers wanted it to be interpreted. Are the consequences of a decision more important than the philosophy it came from?
An almost religious view holds that the Constitution is never ambiguous or contradictory. It is the clear and simple answer to every question. It says what it means, is complete and devoid of the limitations of the written word. Conservatives say: If you don’t accept my interpretation, you don’t believe in the Constitution! But fundamentals cannot take us back to a prior world that no longer exists.
The desire to create a better future can go far beyond what is in the Constitution, disregarding and changing its interpretation in permissive, sweeping, and dangerous ways. History does not support the claims that people make about what the Constitution says. It can be read to support many practices that are abhorrent. It does not necessarily support the government that many of us like.
A strategy is to avoid refighting old court rulings, and make narrow incremental changes, but caution has been argued to demonstrate cowardice and weakness. The inertia of our nation necessitates gradual change. Narrow rulings allow States to become experimental laboratories. When States have different laws it contributes to social confusion, “tourism”, and a fractured national identity.
Cultural relativity was in the House’s plan to rule on the constitutionality of every Bill. Should “we the people” make the law? Duty and authority craft the impression that legal means moral and popular is true. The interaction between social and legal law is shockingly described in the HBO documentary about honor killing in Pakistan, A Girl in the River: The Price of Forgiveness.
We should be glad that we had a Supreme Court to make the 1955 decision to end racial segregation because Congress would not. “Separate but equal” was impossible, but the public did not see it that way. In the 60’s, we lived through what was equivalent to the Hebrew’s exodus from Egypt.
Justices, committed to taking a limited role, interpret the law instead of making it, but the line between these is fuzzy. If the law was complete and exact, all court decisions would be unanimous. Court decisions set precedents. Reality branches in parallel combinations as it encounters variants. Its threads evolve sequentially, in series, as we learn.
It was Moses who brought down the law from Mount Sinai. In Exodus 21 it reads, “You shall not wrong an alien, or be hard upon him…” How would this apply to the war refugees from Syria, to immigration in America, or to natural disasters and future migration brought on by climate change? Is it possible to have a fixed philosophy that applies in every case?
Judicial decisions bound self-government. Cases are considered by the Supreme Court because they are difficult, but courts should not be the first place that people look to solve social problems. Politicians are happy to not have to vote on issues that pit morality, justice, and discrimination against popularity and a public backlash. People ask the courts to decide when compromise cannot be reached. Sometimes issues split the lower courts that have considered them. Sometimes the Supreme Court would prefer to wait and see.
An Iowa evangelical’s question to a politician was: “On your decision-making, will you follow God’s word?” A radio preacher lamented that people don’t recognize God’s command. They disagree. Appointed by the Almighty, he would solve that in the same way that the Biblical Eli told Samuel when God was speaking. The fully staffed Supreme Court speaks with nine voices that often don’t agree. Because of Scalia’s death, the court is evenly split. When they stalemate, it leaves the decisions of the lower courts intact.
The Constitution Says
Article II, 2.2 reads: “… he shall nominate, and by and with the advice and consent of the Senate, shall appoint… judges of the Supreme Court …” It is a constitutional duty. In 1986, Scalia was confirmed by a vote of 98 to 0. Now, Mitch McConnell says, don’t go there. Don’t even think about it. Is this how the Founding Fathers intended Congress to work?
Is it customary to refuse voting when a president is a lame duck? The Democratic Senate confirmed Kennedy by a vote of ninety-seven to zero on Feb. 4, 1988 when Reagan’s term ended in November. The Senate in recent years has not voted unanimously, but there is no tradition that damages the Court by ranking politics over the rule of law.
In Golding’s book, Lord of the Flies, Piggy felt that his classmates would share his proper values and attitudes, but he was wrong and along with Simon was murdered. Golding saw an innate savage, a beast, a loss of innocence and common sense brought on by pride and the desire for power and control.
Mitch McConnell’s cliché “the will of the American people” has tremendous social inertia, but it is not about confirming Supreme Court nominees. It is at best an abstraction. The only reality is the people and they are all different. Republicans say: We must get our way. We will change the rules of the game so the American people win. But the American people elected Obama.