Supremely Dismaying

A few years ago, my family was invited to spend a day at the Supreme Court by someone who worked there. As the lawyer in our family I especially looked forward to this trip because I had always wanted to attend a Supreme Court argument but never before took the opportunity to do so.

Shortly before we went, as a decades-long litigator (and, I admit, a legal nerd), I thought I should prepare for this set of oral arguments like I did when I was the one presenting the argument.  And so, I went on-line, looked up the court’s docket for the day we would be there, and perused the briefs on the cases before the court so I would have at least a basic understanding of each case’s facts and legal issues.

It was a wonderful day. Not only did we bypass the long twisting public line of those waiting in the cold to enter, meet several justices including a short personal visit with Justice Scalia (a man of immense charm and charisma whether he was your legal hero or not – and I was in the not category), and score great seats, but we also saw a morning of first class legal argument. (To give my fellow legal nerds an idea, two of the advocates in the first case were Theodore Olson and Gregory Garre.)

But there was one case that particularly caught my interest, a criminal case in which the defendant was, to be as blunt as possible, the epitome of evil. I won’t bore (or horrify) you with the facts, but suffice it to say, even as an opponent of capital punishment in a world of imperfect justice, had I been on the jury at his trial I would have had great difficulty in voting against sentencing this man to death.

The case before the court did not, however, revolve around questions of guilt, innocence, or sentencing, nor even particularly interesting constitutional or evidentiary issues. Rather, it mainly concerned whether a particular federal statute authorized counsel appointed to represent a state petitioner in federal habeas corpus proceeding to continue to represent him in subsequent state clemency proceedings. (Yes, it was just that technical and tedious.)

And that, paradoxically enough, was what I found especially moving. Here we were, watching the highest court of the land, a court that often deals with major issues of law and policy that speak to what type of country we are, hear a case of statutory interpretation brought by someone who doesn’t meet the most basic standards of civility or, indeed, humanity. And yet the justices listened to his arguments seriously and respectfully, and gave him his day in court, just as it does to advocates of its “important” cases.

To me, this attitude speaks to the most positive aspects of our American system of justice. I understand American justice has many — unfortunately all too many — serious systemic problems that need to be fixed, and I am also aware of the deeply and seriously wrong decisions made by the Supreme Court in cases like Dred Scott, Plessey, Hammer, Korematsu, and Citizens United. Nonetheless, the Supreme Court, especially for those of us who came of age in the decades between Brown and Roe, has often stood as a symbol of what is emblazoned on its building’s façade, “Equal Justice Under Law,” and it exemplified that motto the morning I was there.

So it is with this understanding of, and feelings for, the Supreme Court that I have followed, with a profound sense of sadness, the machinations regarding the appointment of justices to that court since March 2016 to the present. It’s a given that no matter which side of the aisle someone sits on, politics and judicial philosophy, in addition to qualifications, have become essential elements of such appointments. And therefore it would be pie in the sky to expect, for example, a Democratic president to nominate a qualified Justice Scalia or a Republican to nominate a qualified Justice Ruth Bader Ginsburg.

But do we have to sink to the level of reality-show-type nomination extravaganzas, with, as a N.Y. Times critic described it, a “campaign of suspense, building to an announcement that Mr. Trump hyped for a week,” with teases that there were four finalists and a down-to-the-wire decision was expected? And is it really proper to give a first level advice-and-consent veto to the unelected Federalist Society over the short list the president considers?

Unfortunately, we can’t really expect more from our mean-spirited, narcissistic, untruthful, and inarticulate leader, who continues to disgrace our country and his office each and every day. (I understand that many disagree with this description, though it hurts me that so many still do.) Yet I would have hoped for a bit more from some other leaders. Not a lot, but a bit.

Here too, though, instead of leadership what we get is the smug, indeed supercilious, pontification by Mitch McConnell that “the Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy.” Sure, except that under his leadership and at his direction the Senate didn’t stand ready to fulfill that “constitutional role” in March 2016, when it refused to offer advice and consent on President Obama’s nominee, Merrick Garland. Rather, it did nothing. Nothing. No hearings, no advice, no consent. Nothing.

Of course, advice and consent can be in the form of voting down a nominee. And had McConnell and his Republicans fulfilled their constitutional duty, held hearings, and then voted to defeat the nomination, I admit I would have been disappointed, but, as they say, you win some and you lose some. But refusing a hearing and a vote was nothing less than an act of cowardice; McConnell was afraid that some Republicans would have shown some backbone and voted based on qualifications and not politics and thus approved Garland. Or, possibly, he was afraid of the negative reaction Republicans might have received had they voted down such an obviously qualified candidate. In any event, McConnell, coward that he is, was afraid to assume either risk, and so ignored the “constitutional role” that he’s now blathering about.

I care about this not simply because as a lawyer I have the special feelings for the Supreme Court that I discussed above. Rather, the denigration of this appointment process should be important to all of us as American citizens because the court is the linchpin in protecting the rights and liberties of all Americans; rights that are especially dear to our Jewish community, like religious liberty, as well as some perhaps dear to others, such as the right to make marriage and reproductive decisions without government interference. And if those rights and liberties bump up against each other, as they do from time to time, we need a Supreme Court that is thoughtful, is caring, is nuanced, and is wise. We need a Supreme Court filled with justices chosen in a process in which we can take pride, not one resembling “The Apprentice” or “The Bachelor.”

We should be proud that our country has a Supreme Court that over the years has continued to expand freedom and liberty, as it has done in cases such as Brown, Engle, Baker and Reynolds, Gideon, New York Times (Sullivan and U.S.), Griswold, Miranda, Roe, Casey, and Obergefell. God forbid, and I mean that both figuratively and literally, that the political machinations leading up to the seating of a new justice for the October 2018 term cause our country to move backward on the freedoms and liberties proclaimed in these, and other, cases. God forbid.