“Reason obeys itself; and ignorance submits to whatever is dictated to it.”
— THOMAS PAINE
March 2022

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The Circus

Ringling Brothers is gone, but in its place we have the US Congress, most recently the Judiciary Committee of the US Senate. Thank God the confirmation hearing on Judge Jackson’s proposed appointment to the US Supreme Court is over.

Senators Josh Hawley and Ted Cruz tried to provide energetic criticism but they failed to get past absurdity. An underlying tone of “she’s black, so probably just an affirmative action choice”, never quite surfaced but was certainly there.

An attack was difficult, considering Judge Jackson’s extraordinary qualifications. Senator Cruz (Princeton, Harvard Law School) and Senator Hawley (Stanford, Yale Law School) were hard pressed to accuse Judge Jackson of being elite (Harvard, Harvard Law School). They might have accused her of going to Harvard because she couldn’t get into Princeton or Stanford, respectively. (A possible charge, but not one likely to improve their standing with the BASE). Cruz stuck with preschool curricula and Hawley with an allegedly light sentence for an 18-year old high school graduate with a large library of chicken porn. He hadn’t touched anyone or transported them, nor had he made the photographs. Hawley seems to have wanted a life sentence.

As Justice Kavanaugh angrily predicted at his own circus hearings, confirmation spectacles are destined to haunt us if continued. Supreme Court appointments are for the president, not the electorate or the legislature. True, the Senate has the job of advice and consent, and the House has no role. But for most of our history that was a nearly ministerial job.

It used to be different, and better. Of some 72 nominations since the beginning of the 20th century, 28 were resolved by voice vote, not trial by combat. A few controversial nominees withdrew, and there were 38 senatorial votes. Only 9 of those had 40 or more “nay” votes, and only 4 of those were rejected.

Confirmation hearings were also very different. When William O. Douglas was nominated by FDR, he was a well-known New Dealer, serving as the third Chairman of the brand-new and probably controversial Securities and Exchange Commission. He went to the Hill for the hearings and was shown to a waiting room. Hearings were behind closed doors, with no press allowed! Douglas sat and sat, and eventually sent in a note asking if there were any questions of him. There were none. Until Fortas and Bork, unless a nominee was plainly unqualified, the president got his appointment.

That bit of history is interesting by itself and marks a very different brand of politics than the blood sport we now have. But there is more, and something more important at stake—the nature of our tripartite government scheme. Every school child knows about the three co-equal branches of government, of  which the judiciary is one. Professor Alexander Bickel titled one of his books about the Supreme Court The Least Dangerous Branch, because its power is so circumscribed. The Court has neither the power to tax nor the means to collect revenue. It has no military and can neither make war nor peace. Yet the Court has mandated the right to counsel, desegregated the nation’s schools, overturned acts of Congress and enforced equality in voting, employment and a host of other decisions in which it has exercised final authority. When President Truman seized a steel company during the Korean War, the Court made him give it back.

Pretty amazing to recognize that throughout our history the Court has at any one time had only nine unelected, life-tenured members, with black robes and a large and imposing building. How has its power endured?

The answer lies in the phenomenon of legitimacy. The Court exists subject to the willingness of the people. If its decisions are accepted, at least as much as necessary, the system goes forward. So, in a way different from the president or the Congress, the Court explains its decisions. And it pays attention to where the opinion of the country lies. Those who believe the Court has frequent seances with James Madison to understand the “original” meaning of the Constitution would be disappointed to sit in on the Friday conferences. Said Chief Justice Charles Evans Hughes, “We are under a Constitution but the Constitution is what the judges say it is”

Debates about strict construction and original intent are merely costumes, worn enthusiastically and pointlessly  while the Court quietly goes about its work. The Court arrogated to itself the power of judicial review in Marbury v. Madison in 1803, when the ink of the Constitution (1789) was barely dry. Yet nowhere in the Constitution is judicial review mentioned, even though it is the basis of the Court’s authority. Much of our life in America depends on them doing that work well. So we want smart and experienced people, with wisdom and empathy, who listen. Luckily, the recent hearings on Judge Jackson turned up such a person, over the drooling stupidity of some opponents. It would be better to be lucky AND smart. 

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