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?
Hard Decisions
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.
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