Supreme Court Nominations

As soon as a President announces a nominee for the Supreme Court members of the opposition party raise objections which are meant to establish:

1/ The Congressman objecting is a reasonable and sober fellow who objects to the nominee only on the basis of high principles and certainly not because he has anything personally against the nominee.

2/ The Congressman is not objecting because he thinks the nominee will disagree with him about abortion.

3/ The Congressman wants only what is best for the country, the Constitution and the mothers of America.

4/ The Congressman wants to be sure the judge will not attempt to legislate from the bench and will decide each case "based on its merits" and without reference to his or her own set of values but will allow the law to trump his own personal set of values.

What does this mean, in practice?

I am not a lawyer, so my own legal training is limited to middle school Civics, but I did once serve on a jury, despite my best efforts to avoid it. It was a case of a man accused of selling marajuana, and at one point the judge asked if there was any reason any of the jurors felt he could not hear this case. I raised my hand and was escorted up to the bench and the judge asked my problem and I said I did not think pot ought to be illegal and I could not see jailing people who sell it. Then he asked, "If the state could prove to your satisfaction this man did in fact sell marajuana and if you knew this act violated the state law could you find this defendant guilty of having violated the law?" I had to say yes and I was on the jury.

This is an example of someone following the facts of the case rather than allowing his own ideas about what ought to be the law guiding his verdict.

But what do we have in the typical supreme court case which is not a corporate or technical case but one in which social values are in play? Cases like bong hits for Jesus, or the Dred Scott case which was about whether or not a man could be considered property, or the Brown vs Board of Education in which the issue was whether or not there is such a thing as "Separate but equal," or the Roe vs Wade in which the line between infanticide and abortion had to be defined?

Now as I said, I've no legal training, but I do read the newspapers and I'd say 90% of the time I can read a brief description of the case in question and predict which justices will vote which way.

Thomas, Scalia, Roberts, Alito will generally see the case the same way. In bong hits, you had a saucey school kid sticking his finger in the eye of authority. Who do you think those four are going to side with, after they've carefully considered the facts of the case?

Those four horsemen will scrupulously seek out the original intent of the founding fathers, and after they've consulted the scripture written by those eighteenth century gents who were writing before the human voice could be amplified or before there was televison, mass communications (beyond the printing press), automatic weapons, or concepts of environmental rape. And yet, these four know all the answers are in that good book, the Constitution. It's all there, if you only know how to read it.

In any case where the plantiff of meager means tries to bring down some Goliath of authority, money and position,on whose side do you think these four will wind up?

So my question is this: How political or apolitical are the actions and deliberations of the Supreme Court?

The fact is, listening to the questions from the justices which are sparingly doled out on radio, one can hear the justices playing with ideas but always returning to the place they began: They have already decided the case based on their own biases toward or against authority and moneyed interest; they are only looking for some legal justification to wend their way to where they wanted to go before all the facts were laid out before them. They have in fact, consciously or not, pre judged the case.

So how much law is actually involved?

I would like to make a modest proposal: The next supreme court nominee be not a lawyer at all. Choose a scientist or an engineer or a physician or a medical researcher.

For years, judges at every level refused to allow DNA evidence admitted into evidence because they simply did not understand DNA. The usual number of innocent people were convicted erroneously of murder or rape or other serious crimes, sent off to prison or executed. Then, finally, the force of DNA evidence pushed past the resistance to new knowlege and lo and behold, it turned out our judicial system had been making mistakes quite regularly, convicting people who irrefutable evidence now made clear were innocent. Science to the rescue, except law did not understand science, so hear no evil, see no evil, and law changed too late for some.

So, let's have a scientist or two on the Supreme Court.

Listening to one of those radio broadcasts of Supreme Court questionning, Justice Ginsberg expressed stupefaction at the idea that a simple intramuscular injection into an arm could get infected and cost a patient an arm. Obviously, the Justice implied, something must be very wrong with whatever was injected or the procedure of injection for such a thing to happen. Someone must have done something wrong.

No Justice who was a doctor would have reacted that way. Physicians know the risks and they know the horror stories. But that's why physicians are systematically excluded from trials with medical content. They know too much. The legal system requires jurors to be a blank slate, lest their knowledge blind them to the law.