We’re Courting Disaster With Out-of-Date Supremes

Jim Jeffords’ little stroll across partisan lines to independent status has got the Senate’s knickers in a twist. The Vermont Senator’s treason has enabled the D’s for the first time in six years to pick the best office space and gain control over other, similar weighty matters in the perks-and-privileges department. The suddenly smirkless R’s are in a snit and a rage, promising to filibuster all life on the planet to a standstill.

The majority-minority switch may also have made any Republican Supreme Court justice who had delayed retirement until the advent of a Republican President more than a little cranky. If such a person is sitting up there on the bench, does he or she go ahead with retirement plans, assuming that the gimlet-eyed George W. Bush can force a suitably reactionary judge through the Senate confirmation process, which the other party is now in a somewhat better position to manipulate? Or do all nine of the black-robed avengers hang on like grim death, until grim death itself shows up and snatches one of ’em?

With each passing day, the odds get a fraction better that, if not death, then decrepitude will bring on the much-anticipated confirmation battle. The way to avoid the battle, we are told, is for Mr. Bush to appoint Orrin Hatch, Utah’s own glib son of the far right, because the Senate will never reject one of its own. It’s too collegial, too back-slappy, too clubby to block a fellow Senator going across the street to the Supreme Court building. If Mr. Hatch was appointed and then didn’t get confirmed, he would still be there, in the Senate, seething and breathing partisan revenge with all his fellow Republicans. “Sulfurous” doesn’t even begin to describe what the atmosphere would be like in the no-longer-so-august chamber. Hence, the thinking goes, Mr. Hatch is the most-likely-to-be-confirmed ne plus ultra conservative: He has many friends in the Senate; he’s been there forever; he’s a former chairman of the Judiciary Committee; and he comes from a state that would reelect another Republican in his place.

Even so, with all the Senate’s traditions of comity, of courtly bowings and gentlemanly scrapings, the Democrats will find that they cannot let a reactionary like Mr. Hatch on the bench. In the last election–the one stolen from them–one of the Democrats’ most stridently urged arguments was that a Bush election meant Bush appointments to the Supreme Court. It was the threat of his picking a reactionary of Mr. Hatch’s stripe that the Democrats used as an argument on those who were retching at the thought of voting for Al Gore. Pal or no pal, colleague or no colleague, letting Mr. Hatch on the court when they could have stopped it might get certain Democratic Senators lynched by their own people.

In times past, there has been anger and bitterness about the Supreme Court voiced by one slice of opinion or another. In the early years of the last century, Theodore Roosevelt was ready to do in the federal court system. In the mid-1930’s, the Democrats in general–and Teddy’s younger cousin in particular–were apoplectic at what the antediluvian worthies on the high bench were doing to New Deal legislation. In the 1960’s, every highway in the 13 states of the old Confederacy was festooned with billboards denouncing Chief Justice Earl Warren. Nevertheless, it appears it has only been in the last generation that the Court has assumed such a large place in the national consciousness that it is now a perennial element in our Presidential campaigns. Promises to make or calls to block Supreme Court appointments have become a permanent part of our quadrennial elections.

The “dragging” of the Court into politics is a cause for moaning by the prissy ninnies who do the talk shows and by otherworldly law professors. Other, more firmly grounded souls grew up understanding the insoluble connection between law and politics. Nevertheless, something has changed to make the courts in general, but especially the Supreme Court, a constant center of attention. What has changed is that the courts have taken on a legislative function, not as an occasional necessity but as a workaday job. Congress legislates in broad strokes, and then the Court, with its own politics and policies, takes what Congress has done and fashions or refashions it to its pleasure.

Time was when you might debate about “interventionist” and “strict constructionist” Supreme Court judges. Over the decades, Democratic and Republican judges switched between being interventionist or strict constructionist, but regardless of whichever party was taking whatever position, the Court more or less stuck to what most would agree were judicial functions. Well, that’s gone with the dodos. Now, all Supreme Court judges are interventionist; all are legislativists. In this matter, there no longer is a conservative or traditionalist view of how the Court ought to conduct itself. Those judicial traditionalists left are lay people, the non-lawyers.

The Court as a secondary legislative body has no existence in the written Constitution, but the United States has an unacknowledged, unwritten Constitution; and a good thing it is, too, for the written one–the Constitution that Americans handle as though it were the Torah itself–is an unchangeable, rigid, impractical, 18th-century political document, the close adherence to which paralyzes and petrifies the nation. The unwritten Constitution derives from the written one, but it is more supple, adapting and responsive to major pressures and necessities. The charter for the Supreme Court as a secondary legislative body is to be found in the unwritten American constitution.

Hence, every Supreme Court appointee has to be judged under two aspects: Is the candidate “qualified,” meaning has that person mastery of legal techniques and procedures, and secondly, what are his or her politics? The notion that a Supreme Court candidate should be voted up or down simply on knowledge of the law, on legal competence, is miserably out of date, although not out of fashion. Every time the topic comes up, Senators say they are looking to confirm judges who know the law and will apply it without doing anything else.

That idea governs Supreme Court confirmation hearings to the extent that it is considered out-of-bounds to ask appointees what their positions are on abortion, prayer in the schools, NAFTA or any other question of substance. Any question relating to a prospective justice’s legislative obligations is off-limits, and in the hearings the justice-designate will not answer. The excuse given is that he or she may have to render judgment on that issue and thus must remain unbiased. So the candidate sits in front of the Senate Judiciary Committee and lies, pretending that he or she has no position on important questions.

Since Senators who are opposed to the justice-designate’s policies and politics are foreclosed from joining the issues directly, they have recourse to the ugly business of digging up pejorative stuff from the would-be justice’s past life and writings. Instead of hearings in which the quasi-legislative and quasi-administrative functions of the modern Supreme Court are recognized, confirmation hearings become nasty marathons in which the side opposed to the designee searches high and low to find a fatal gotcha, something so disgraceful that the candidate will slink away or be abandoned by his or her own party. That is what is going to happen if one of those aging persons on the Court plops over lifeless on the bench; unless, of course, Mr. Bush goes out of character and chooses a Molly Milquetoast, one of those latter-day political figures with no record of accomplishment, no enemies, no personality and no profile–a non-target who is perfect for Senate confirmations, and little else.

Pat Leahy, the other Senator from Vermont, is now the chairman of the Judiciary Committee. He’s the one who could announce that the next Supreme Court nominee will be questioned on substance, on legislative specifics, and will not be allowed to become an opaque planetoid in a gaseous cloud of legal theology. Mr. Leahy is too much of a lawyer to do it, however.

Given its new functions, the Supreme Court is in need of the first major overhauling in its history. Its quaint ways and formulaic procedures–not to mention its house, the last Greco-Roman government temple built in Washington–combine to give it a dignified, immotable immortality; but behind the high-toned foofaraw, there sits an antiquated, out-of-date institution made of wooden sprocket wheels and hand-forged nails. It should all be torn out and replaced, but that’s too much to hope for. But it might not be too much to ask for two or three of our politicians to start complaining that it’s not the judges, but the Court that needs changing. We’re Courting Disaster With Out-of-Date Supremes