Order in the Court

With Justice Souter's retirement from the Supreme Court President Obama now has his first opportunity to nominate a Supreme Court justice. Already the GOP leadership (Rush, Steele, Newt) have come out against Obama's pick, and as soon as we know who the nominee is they will let us know why. We are likely to hear a lot from the bobble-heads about women, Hispanics, gays, liberals, conservatives, originalism, strict constructionists, Roe v. Wade, and most recently, empathy. These topics are intended to be a distraction. Instead of these phony concerns, the real issue that should be the deciding factor in selecting a Supreme Court Justice is how that person will interpret the Fourteenth Amendment. So-called conservatives have wrapped themselves in a cloak of radical judicial activism and rebranded it as originalism to advance not the text and purpose of the Constitution but instead their preferred policy preferences. By propagandizing their version of originalism as the only true method of Constitutional interpretation, they hope to hide better methods of interpretation from public scrutiny.

First a primer on the nomination process. The President nominates a Supreme Court justice and the Senate votes whether to confirm this person. Following Obama's nomination the Senate Judiciary Committee will hold hearings and ask the nominee many questions about his or her background and judicial philosophy. The senators will make a big show of the proceeding, then vote whether to send the nomination to the full Senate to confirm. There will be a near party-line vote in committee, but the nominee likely will make it to the full Senate.

Senate Rule 22 requires that 3/5 of the senators "duly chosen and sworn" vote to invoke cloture on the nomination before the full Senate can vote whether or not to confirm the justice. That means 60. Assuming that all the Democrats and those who caucus with them support proceeding to an up or down vote, then until Al Franken is seated at least one Republican will need to vote to invoke cloture. This should not present a problem because you will recall that when President Bush nominated Justices Roberts and Alito, Republicans were in the majority in the Senate, there were many Republicans who supported doing away with the cloture rule for judges entirely and proceeding with the confirmation on a mere majority vote. There the cloture motion gathered the necessary 3/5 votes so the Senate did not change the rule. Presuming that these senators who protested a possible filibuster of Bush's nominees are not hypocrites they will be pleased to support taking Obama's pick to a full vote, even if they do not support confirming the nominee. OK, they are GOP Senators, they cannot avoid hypocrisy, they will find an immaterial reason to try to filibuster, but there are probably 60 votes to pass the cloture threshold and move to the confirmation vote that requires a mere majority.

What is the purpose of the confirmation process? In the past it may have been to allow the states to have a say in who the president nominated to the court. Until the Seventeenth Amendment, the states, not the voters, could select which men (at that time, only men were chosen) were sent to DC to represent the state. The People had the House representing them through direct elections. The House does not participate in the nomination process, so presumably in 1787 the Framers did not consider the nomination of judges to take into account their representing the people. While the president is still elected through the archaic electoral college process and not directly by the People, the Senate is elected by the People so there should be at least some consideration by the senators that the person nominated by the president in some way represent the People.

Which gets to the first distraction, that is, that Obama is going to nominate someone who is not a white male, thus the person surely must not be qualified. This argument is laughable. Whomever Obama appoints, he will pick that person from a pool of highly qualified candidates. There is not one best-most-qualified person and no hierarchical ladder that potential justices climb that puts one in the best position to be the nominee. What I hope is that Obama takes a look at the court and tries to find someone who is not only a great scholar but who also can provide Constitutional interpretations from viewpoints not currently represented, as the court today is far from representative of the US. Eight members are male, eight are white, five are Catholics, eight went to Ivy League schools, seven are from the northeast, most were Federal judges before their nomination to the court. This doesn't exactly track the makeup of my neighborhood. Unless you live in Greenwich, this makeup is likely highly unrepresentative of you as well. Even if the person that Obama finally selects fits into some of these categories then I hope that he or she at least has spent some significant time outside the beltway and can bring to the court some fresh air.

I think a second reason for the confirmation process is to ensure that the president doesn't appoint his hack cronies to the court. See Harriet Meyers, who was derailed by the GOP because she didn't meet its strict anti-choice requirement. But there was also no reason to believe that she had given any thought ever to Constitutional interpretation so rejecting her was probably a good thing. It is highly likely that all of Obama's potential picks have given considerable thought to the Constitution, and among the names that have so-far been floated all seem to be highly intellectually qualified.

Now that I've discussed the process and why I think the president and the senate should consider the representative nature of the court nominee, I'll move on to what I look for in the nominee. Of the current court members, most of the time I think they make reasonable arguments. Some of them, however, start from a wrong premise so cannot ever reach a right answer. That wrong premise is originalism. Some call it strict constructionism (which I'll show is a lie) but the basic idea is that the Constitution should be interpreted only in the way that the framers in 1787 would have interpreted it. This of course cannot be correct because the Constitution has been amended 27 times since it was written. These amendments do more than just add new limitations or requirements on government, they fundamentally affect the way that the remainder of the Constitution interacts with itself. Any view that does not give substantial weight to the amendments in the fabric of the Constitution must be wrong.

The Constitution was written by its framers to protect them from the excesses that they had been subjected to by the English King. As such it is a remarkable document, that these men would establish a government prohibited from inflicting the same pains on them as the King had done when he was their sovereign. But what is often omitted from the history of the Constitution is that it was written by and for landed white males who owned as chattels other humans. You cannot understand nor interpret the Constitution without understanding slavery. Since it's framing, the Constitution has been amended to theoretically provide the same rights to all the People that the framers envisioned for themselves. But to look back to 1787 and try to glean from the contemporaneous writings of the framers all you need to know about the Constitution, as originalists claim they do, neglects the fact that none of the framers would have thought it odd if Justice Scalia owned as a chattel Justice Thomas. Many framers in fact would have thought this ownership most proper. But we know that the Thirteenth, Fourteenth, and Fifteenth Amendments promised the end of slavery and racial discrimination, a promise that took more than 100 years and a courageous court to begin to fulfill. Women had, and continue to have, their own fight for equality under the constitution. Originalism then cannot give full effect to later amendments, thus should be marginalized as a judicial philosophy.

Because amendments are critical to understanding the Constitution and marginalizing originalism, the most important Constitutional issue to ask a Court nominee is, how do you interpret the fourteenth amendment? To review, the amendment, adopted in 1868, reads,

Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5 The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Thirteenth,Fourteenth, and Fifteenth Amendments were adopted after the Civil War because the southern states continued to treat the newly freed slaves as slaves. The reconstruction amendments were intended to eliminate discrimination against newly freed slaves and to provide a baseline of federally guaranteed rights that all states were to provide to their citizens. States of course could provide more rights, but the purpose of the Fourteenth Amendment was to grant Congress the power to enact laws that ensured the People were protected not only from a rouge federal government, but from rouge states as well.

We next ask what was the purpose of the Civil War. Some southern apologists suggest that it was about "states' rights". If only that were true this would be easy. The states lost, the US adopted the reconstruction amendments, and if the war truly were about states rights then states have no rights and they should just shut the fuck up. But it is more complicated than that. The war was really about slavery, and whether some humans could continue to own other humans under the protection of the state and federal governments. Now I could happily go along with the states' rights people and the implied broad view of dramatically limited states' rights because I don't really want states interfering with my federal rights, as states are apt to do. But the war cannot realistically be interpreted that way. The war should be seen as repudiating slavery and providing to the federal government the ability to say to the states that yes, you have some ability to regulate your citizens, but your citizens are also citizens of the US, and so long as you provide at a minimum the federally guaranteed rights we won't burn down your cities again.

Thus, the Fourteenth Amendment in the aftermath of the Civil War firmly establishes that the states will provide and protect the Peoples' federal rights. Interestingly, the Tenth Amendment has reared its head recently, specifically when Texas governor Rick Perry suggested that Texas, and maybe other states, would consider seceding if the US does not respect their "rights". Let's take a look at the Tenth Amendment, which reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The purpose of The Tenth Amendment in 1791 was to ensue that the rights enumerated in the Bill of Rights would not be read to be the exclusive rights guaranteed by the Constitution, and to clarify that common law police powers of the states had not been eliminated by the Constitution. Thus, the Tenth Amendment tells us that there are other rights that the people have, and powers that the states have, that cannot be abridged by the federal government. The trouble though with relying on the Tenth Amendment is that it was superseded by the Fourteenth. When the South lost the Civil War, the result of the loss was Constitutionalized in the Thirteenth, Fourteenth, and Fifteenth Amendments. Through those amendments, which greatly limit the states' power previously described in the Tenth Amendment, the federal government gained much more power to protect individual rights from oppression by the states than the framers in 1787 envisioned. Thus, so far as individual rights are concerned, the US Constitution always comes first. Congress may provide additional protection through Section 5 of the Fourteenth Amendment. Finally, the states may add to the rights that the People have through the Constitution, but may never inhibit federal individual rights.

Now why is this important? Well, so-called conservative justices have often neglected the Fourteenth Amendment rights of the people and have struck down federal laws that protected individual rights, citing the Tenth Amendment as authority. This cannot be right though because of the text and history of the Fourteenth Amendment. Thus, if it were me deciding which judge to appoint or confirm, I would ask him or her whether the Fourteenth Amendment substantially changed the Tenth such that the Congress has broad powers to enact legislation that protects the People's rights from state abrogation. In my view a judge is not qualified for the Court who does not agree that the states' Tenth Amendment powers have been substantially undermined by the Fourteenth and that the Fourteenth Amendment provides the US Congress the affirmative power to regulate states that Congress finds are not adequately protecting federal rights of individuals.

And what of originalism? The text of the Constitution, and the text in the context of the whole of the Constitution and in history, should be the deciding factor in interpretation. When the text is unambiguous the words alone should tell us what it means. I realize that all Justices have their own personal bias, but they should embrace and not lie about their bias. Take for example the Eleventh Amendment, which reads,

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The so-called conservative justices, who are sometimes called strict constructionists, construct this amendment to mean that citizens of a state cannot sue their own state. Where, from the text of this amendment, can a person who is strictly construing the text find that interpretation? He cannot. That interpretation is just not available. When Justice Scalia claims that it is, he is exercising the judicial activism that his supporters supposedly eschew. Now there may be good policy reasons for finding this decision, but policy allegedly is not the gambit of the strict constructionist. Are not the actual words the most important part? I would usually go further than the text alone, and look to the purpose of the text and the purpose of the entire Constitution, which is to guarantee rights to the people unless otherwise specified in the Constitution or when the government has a compelling reason to do something of the benefit of the US.

As for empathy, again I think this is a distraction. My dictionary tells me empathy means to understand and share the feelings of another. So? How does that necessarily lead to invalid holdings? Justice O'Connor had plenty of empathy, often writing how badly she felt for a particular plaintiff, but then still telling her that she lost. I agree that many of her decisions were wrong, but because of reasoning, not because of empathy. Justice Scalia has little empathy, but I disagree with many of his decisions because I think he misrepresents the relationship of the Tenth and Fourteenth amendments. And that Fourteenth Amendment interpretation I think is the key to a Supreme Court Justice.