Counting To Nine

There is much to criticize about the justices of the Supreme Court of the United States. They don’t work too hard. Under the guise of “judicial modesty,” they leave glaring issues on the table for years, sometimes decades, rather than do their job and provide meaningful guidance to lower courts. And, despite what we all take for granted, their core purpose, as we understand it today, derives from judicial activism, when Chief Justice John Marshall pulled judicial review out of his butt in 1803.

And sometimes, monumental issues of law are determined by a single justice, who breaks a tie, shifting the paradigm of a nation’s constitutional rights from one side to another. In a more rational world, one might suspect that such a shift should be determined by unanimity, if not plurality. After all, if four go one way and four the other, how certain can a nation be that the decision is right? Is it too much to expect that nine people agree before we accept a fundamental change in the interpretation of the Constitution? Is it good enough that one justice, one swing vote, be sufficient to change everything?

Yet, that’s how it works. And that’s why voices you believe are knowledgeable and trustworthy lie to you.

When Merrick Garland was nominated to the Supreme Court by President Obama, it was a smart gambit, knowing full well that the Republican-held Senate had announced they wouldn’t give anyone nominated by Obama a shake. He was a moderate nominee who could have been offered by a president from either party. There was nothing wrong with Garland, and the Republicans in the Senate, with minor exception, took no issue with the judge put forward.

Their gambit was to lie to the public about some election year lame duck nonsense and see how gullible and ignorant the public was. They ignored their constitutional duty to “advise and consent” because they realized there was no mechanism to compel them to do their duty. They got away with it. Despite the ongoing outrage over Garland’s treatment, the time to punish the Senate Republicans for their shenanigans was at the last election. America let them slide. Maybe, they even rewarded them. It doesn’t matter, as the fact remains that there is still a Republican majority in the Senate, and a putative Republican president.

Despite other issues, President Trump nominated Neil Gorsuch to fill the seat left empty by the death of Antonin Scalia. Two things were known right off the bat. First, that no matter whom he nominated, it wouldn’t shift the ideological center of the court. Second, no matter whom he nominated, he would be confirmed over objection of the Democrats. That’s because the Republicans held the majority in the Senate. That’s because their constituents elected them.

As it turned out, the president nominated a judge who was universally respected within the judiciary. He was not likely to be described by anyone as an “empathetic Latina,” but Neal Katyal, President Obama’s acting solicitor general, immediately came forward to vouch for Judge Gorsuch. Senior Judge John Kane of Colorado, appointed by President Jimmy Carter, and a stalwart defender of civil rights, similarly spoke out in favor of Judge Gorsuch.

Tenth Circuit Court of Appeals Judge Neil Gorsuch was as solid and benign a choice as one could possibly hope for from President Trump.

Then came the slime campaign from the opposition, minority party senators, so-called legal journalists, shameless academics, and they convinced the unduly passionate that he was some ideological monster who would destroy everything they held dear and single-handedly ruin a nation. They were determined to make good and real people stupider for their own political ends.

Honest insiders were aghast. It wasn’t that Judge Gorsuch was necessarily their first choice for the seat, but that he was being smeared with lies, wild exaggeration, flagrant misrepresentation and a campaign to destroy the reputation of a good judge in the eyes of the public. If these supposedly legitimate fonts of public information were willing to destroy Judge Gorsuch in furtherance of their politics, no judge was safe.

No reputation would remain unbesmirched. No lie or distortion was too much. And for anyone who has yet to figure out how the downward spiral works, if the Democrats and their fellow travelers would do this to Judge Gorsuch, so too would the Republicans and their fans do the same to a Democratic nominee.

It was open season on judges.

Many question how the 2016 presidential election came down to a choice between two such dubious candidates. Where were the statesmen? Where were the people who inspired a nation, who brought out our better nature? Instead, we were forced to hold our nose as we voted, no matter whom we voted for.

The viciousness of politics left a nation without a candidate behind whom we could rally, because good and smart people, lacking the narcissism and hubris to want to face the ugliness, vitriol and ignorance of the campaign, clear that they would not be elected without giving up their integrity to pander to the simpletons and say outrageous things about their adversary, chose not to run. Public service is a wonderful thing, but we’ve made it dirty and brutish.

Even after the Senate confirmed Neil Gorsuch as associate justice of the Supreme Court, the breathless liars remain at it, as if their persistence will de-legitimize him. Hysteria remains, and an insanely false narrative about Judge Gorsuch seeks to perpetuate a public belief in hate and dread so that the “least dangerous branch” loses its only weapon, integrity.

It is not that the Supreme Court, the judiciary, was above criticism. It’s not that it should be. But this wasn’t honest criticism, serious questions. Judge Gorsuch need not be your first choice for the Court, but it’s not likely that President Trump was going to appoint Wild Bill Douglas or Thurgood Marshall to fill the seat.

Judge Gorsuch is a fine choice for a Republican president. He deserved better from a nation. So did Judge Garland. But after the outrageous political smearing, and the willingness of the smartest and most ignorant to attack the straw-monster, decent and wise jurists will follow their political counterparts and turn their backs on public service. Who needs this? Who needs you? That includes judges like Gorsuch and judges like Douglas and Marshall.

We need good and decent people in the judiciary, on the Supreme Court, who may have their judicial philosophies but do not reside in the cesspool of your understanding of how the Court works. We need them. But we no longer deserve them. Not after the way Judges Garland and Gorsuch were treated.

10 thoughts on “Counting To Nine

  1. Pat Riot

    Five stars! Clear minded and to the point. We need good and decent people not only in the judiciary, the SCOTUS, but every where anyone is elected to any office and serves the public. But you may be right: do we deserve them? Probably not.

  2. B. McLeod

    To sit on the Court that makes things up as it goes along, you have to be dicked with by politicians. It just goes with the territory.

  3. Keith

    On the bright side, there’s no longer a need to pander to get enough people on the other side to get you over 60. If the President’s party has the Senate, either side can nominate anyone, including someone like Marshall or Douglas without having to risk losing a few of the crucial 60 vote margin because they didn’t get someone “compromised” enough to make it through the filibuster.

    After all we’ve done to politics, we certainly don’t deserve good people putting their heads out. But if they do, we may be pleasantly surprised.

    1. SHG Post author

      That was the argument Jon Adler made to me, that we might now get a CDL on the Court. I’m still not buying, not because he can’t get past Congress but that any prez would know or care that we exist. Remember all that great crim law reform from Obama?

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