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Scalia and a Native justice

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So even before Associate Justice of the United States Supreme Court Anton Scalia is cold in the ground, lines are being drawn over his replacement.

Scalia was a self-described “originalist” in interpreting the Constitution and Bill of Rights. In other words, he sought to apply what the founders intended in the context of their times. Just in terms of the Second Amendment, “well-regulated” militia did not mean regulation in the way we perceive the word. Clocks have regulators; it meant well-trained and reliable, not regulated-by-the-government.”

Kinda like when Hamlet told Ophelia to “get thee to a nunnery.” If you pull out a real Oxford English Dictionary and study the etymology of Shakespeare’s time, “nunnery” did not mean a convent. It was English slang back then for “whorehouse.” Changes the whole meaning of the joke. That’s “originalism.”

We will not have another “originalist” the likes of Scalia on the Supreme in our times. Italians aren’t part of the perpetually indignant and offended identity politics of the Progressive era who need pandering to. They just work, think, build and invent stuff: not qualifications necessary or desired for high office. Scalia prevailed over an egregious decision having to do with death row cases – depriving post-trail exculpatory evidence of consideration during appeals – but on balance he held the court to weather.

No, the next appointee will be an LGBT/disenfranchised/victimized irritated type with an Ivy League law degree. There are, one is sure, decent folks even amongst this ilk, but even were Obama to break stride and appoint, say, Jesus Christ, juris doctor, for the job, the GOP would obstruct it. So it is business as usual in Washington, D.C.

But since identity politics is sure to frame the appointment, why not appoint a Native American? As I mentioned in a brief brain-fart the other day on Facebook, surely no more disenfranchised and screwed-over population exists in this country than the American Indian.

All nine Supreme Court seats are occupied by lawyers but there is no Constitutional mandate that a High Court member has to have a law degree. Surprised? I was, too. Non-lawyers have served in that high office before, the last being Stanley Reed, who was appointed to Supreme Court Justice in 1938 and served until 1957. He never held a law degree, although he was admitted to the bar. Robert H. Jackson joined the High Court in 1941, retiring in 1954 without ever having obtained a law degree, although he did attend one year of law school at Albany.

Nor is there a minimum age: the legendary Joseph Story took his place on the Supreme Court at the tender age of 32, back in 1811.

The Constitution in fact specifies neither age nor professional minimum requirements to serve on the High Court. So why are fat-cat juris doctorates (left or right) the only possibility for nomination these days?

One answer lurks in the composition of the United States Congress. Lawyers comprise the single largest voting block in the Congress: 43 percent. Sixty per cent of U.S. Senators are lawyers; 37.2 per cent of House members are attorneys.

This is not a new problem.

According to Legal Reform Now, “Since the time of de Tocqueville (1841), students of American government have noted the over representation of lawyers in American politics (se e.g., Hyneman 1940; Hurst 1950; Matthews 1954, 1960; Schlesinger 1957; Derge 1959; Eulau and Sprague 1964; Keefe and Ogul 1989: 117-18). And it seems that the more important the political office, the more lawyers who occupy that office.”

What seems to have changed is the nature and motivations of lawyer-congressmen. Continues Legal Reform’s analysis:

“With the large number of lawyers descending on Washington in the 1970’s to enforce newly passed civil rights laws in an increasingly liberal culture, the goal of lawyers changed from doing good to simply increasing their power and influence. And in a very short time their income too.

“As in many other aspects of our society there was a change from meeting one’s public responsibility to attempting to enrich oneself. Even at the expense of one’s fellow citizens.

“In To Kill a Mockingbird [Harper Lee, RIP] Gregory Peck played Atticus Finch, a white lawyer using a rifle to defend a black man’s life by blocking the entry to a jailhouse door. That was in the 1930s. How many lawyers today would do the same to defend an individual’s right to justice? Very few.”

Maybe the one physicist, the one microbiologist, the one chemist, or one or two of the eight engineers (all in the House, with the exception of one Senator who is an engineer), or one or two of the
29 farmers, ranchers, or cattle farm owners (four in the Senate, 25 in the House) or the two almond-growers and two vintners serving might have the testicular fortitude to take up arms against the genuine evils depicted by Harper Lee or Mark Twain. The lawyers in Congress? They’d cop a plea bargain for their bigot and collect their fee.

But I digress. Scolding greed-head lawyers in Congress and their increasingly pernicious presence in the press is like shooting fish in a barrel. But it is time we rid ourselves of this time-honored tradition of lawyers selecting lawyers to govern us.

Lawyer Obama should consider a Native American tribal elder to replace Scalia, pedigreed or not in the rubber-stamp of law school. That would appeal to his identity politics and quiet down the Republicans. My friend Lisa Reimers of the Iliamna Village on Bristol Bay in Alaska would be an elegant choice. She knows the consequences of unilateral EPA actions. Or if it has to be a lawyer, Howard Funke of Idaho, of the Sho-Ban Tribe, who fought and won the Swan Falls Dam case for Indians and migratory fish.

You’ve had eight years to do something right, Mister President. Here is your chance. Appoint a wise Native.

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One Comment

  1. deepee99 deepee99 February 24, 2016

    My apologies to Howard Funke. He is a Chippewa. The landmark Swan Falls Dam litigation he fought was on behalf of the Sho-Bans. Still would love to see him on the Supreme Court. He’s paid his dues and is a brilliant thinker.

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