We seem to have gotten ourselves into a bind. We want fair judges on the Supreme Court but we don't think it right to ask nominees what they truly believe in down deep in their heart. Why? Because they're judges and we don't think it right to ask a judge to pre-judge the outcome of a case s/he hasn't yet heard.
That's how we treat jurors who decide cases all the time.
But the Supreme Court, although it decides cases all the time has an added dimension that a trial court judge and jury do not have. In a trial court, the decision on the facts by the jury and on the law by the judge has significance only for the litigating parties then before it.
The Supreme Court, by contrast, is one of the three policy making branches of our federal government, or four if you count the administrative agencies with rule-making power, of which there are many.
So when nominee-for-Chief-Justice John Roberts declared that he would serve as an umpire, fairly calling balls and strikes, he likened himself to a trial judge who just makes rulings on objections.
That is hugely misleading, for the role of a Supreme Court justice goes far beyond calling balls and strikes. The job of a justice is to make policy for the nation based on human values, his or her human values, writ large.
This is why the conservatives want a conservative justice and the liberals want liberal justices, because in the final analysis, the only thing that matters is what is written on the heart of the nominee personally.
When you vote to confirm a nominee, you are voting to install for life one person's heart as policy maker for the nation.
Should blacks go to public school with whites? Yes said the Warren Court, unanimously, in Brown v. Board (1954)
Should forced busing be ordered to achieve public school integration with "all deliberate speed?" Yes, said the Court in Brown II and Charlotte-Mecklenburg, later.
Should married people have the right to use contraceptives? Yes, said the Court in Griswold in 1965.
How about extending the right to unmarried people and teenagers, is this okay? Yes, said the Court in Eisenstadt v. Baird.
Should gays have the right to engage in sexual relations together? Yes, said the court in Lawrence v. Texas (2003).
Should 'good' racial discrimination be allowed to correct 'bad' racial discrimination? Yes, said the Court in Grutter v. U. of Michigan (2003), at least for the next 25 years.
These are all policy making decisions. We don't really care very much about the litigants, do we? We care about the fact that when the U.S. Supreme Court decides a case on policy making grounds, it affects the rest of us. The rule for the litigants becomes the rule for the country.
Therefore it is unfair not to explore the heart of a justice-nominee. It is unfair, not to the litigants but to all of the non-litigants affected by the decision. The only say that we get in a monumental decision, such as any of the above, is to watch interested organizations submit friend-of-the-court briefs. We can write letters to the editor, columns wherever we can, march, and picket to our hearts content. The one thing we cannot do is to ask a nominee what s/he truly believes down deep, where it really counts.
Why? Because we pretend that the Supreme Court is just an ordinary court instead of what it really is, a super-legislature.
Sure, I like Brown, Griswold, and Lawrence as exercises in liberty, equality and due process (Bolling v. Sharp, the companion to Brown, went off on Due Process because it applied to a federal district, the District of Columbia, i.e. Wash. D.C.).
Those were terrific pieces of national policy making, legislation.
So, to all the conservatives who rail against the Court for acting more as legislators than judges, why don't we face reality and accept what you say as true. If Supreme Court judges are really legislators, not judges, why isn't it fair for us, the people their decisions affect, to insist on a full exploration of the innermost beliefs of the legislators nominated to serve as justices?
Why should we be forced to accept a-pig-in-a-poke?
Today's San Francisco Chronicle has as the lead editorial a report on Pres. Bush's use of religious code to speak to his religious conservative base. He tells them "I believe that God wants me to be president." Maybe his god does, but not mine. His god may be bigger than mine, however, as George is president and I can't argue with that. Maybe he could lend me a little divine support.
...It was not surprising at all that Bush might think he could reassure skeptics on the right by simply saying he knew what was in Miers' heart, a phrase that had the ring of code. This time, however, many are demanding to know much more about her views on Roe and other constitutional issues. So should all Americans.
San Francisco Chronicle, editorial, Oct. 19, 2005
Hence the question:
In light of the fact that the Supreme Court, in the guise of deciding cases, actually sets policy of all sorts, political, social, economic, religious, and regulates the powers of the other two coordinate branches, and only incidentally affects the lives of the litigants before it, and that the policy-making effect of its decisions is far more weighty to the nation than the impact on particular litigants, why isn't it perfectly proper to insist that nominees be subjected to the most searching inquiry into what they truly believe?
I posted the following to the Conlawprofs listserv:
Sen. Charles Schumer (D-NY) yesterday stated that Harriet Miers was even less forthcoming than was John Roberts concerning views on the Constitution.
The justification for withholding views from the popularly elected senators who must vote to confirm or reject a nominee is that the Supreme Court is a Court that decides cases and it would be unfair to the litigants to have justices whose views were known in advance to be hostile of favorable to one party or the other.
This smells like the ultimate Con-law red-herring.
We really care much less about the individual litigants than we do about ourselves, meaning the rest of the country, for a Supreme Court opinion has a spillover effect that goes far beyond the interests of the litigants. We pay very little attention to the individual litigants in Brown, Griswold, Roe/Casey, and Lawrence or any other Supreme Court case. We pay a great deal of attention, however, to the spillover effect on the rest of the country.
Yet it's the spillover effect that is ignored when it comes time to question nominees on their deepest held beliefs, the ones that Supreme Court decisions ride on in the final analysis. No, we can't go there, because that would be unfair to the litigants. What about the rest of the country?
The Supreme Court is the ultimate policy-making body in American government, outweighing the president and Congress. It is the least democratic, and (perhaps) the one most dependent on the core beliefs of the occupant of the position, yet it's the only one as to which we cannot question nominees for the lifetime position on closely because s/he's "a judge." S/he's not just a judge. S/he's a super-legislator whether we like it or not, and we ought to be able to decide our fate by asking appropriate questions, just as we do candidates for Congress and President.
One-tenth of what the Court does is to decide cases. Nine-tenths of deciding cases is to set policy for the country based on the personal views of the justices. It seems to me that calling the Court a court is a bit of fakery that allows the judicial fifth to serve as the cart that is pulling the horse.
rs
sfls
Which drew a response:
If the effect of a Supreme Court decision was to bind only the parties, then the Judicial Fifth would have maximum merit to preclude pre-judging. But since the effect of a SC decision is to bind the nation, far beyond the parties, whose case only serves as a vehicle from which to expound doctrine, the Judicial Fifth has that much less merit.
A refusal to answer should thus be weighed against the nominee's candidacy because s/he is refusing to open up to the rest of the nation, the people beyond the actual parties who, as it turns out, are the real parties in interest.
rs
JFN wrote:
At 8:48 AM -0700 10/19/05, Bob Sheridan wrote:
Nine-tenths of deciding cases is to set policy for the country based on the personal views of the justices.
I wonder about that. My instinct is different -- that maybe 20% of it's calendar has broad policy implications. Realizing that the distinction is uncertain, and the allocation is subjective, I wonder how others would apportion the calendar between cases with and without political constraints or imperatives for individual judges.
John N.
Bob, you're right on this one. Good post, Miguel
***
That's nice. And no one wrote in to say how wrong I was, so I take heart in that, 'cuz this is a pretty tough bunch of critics.