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Preserve and protect

mckee

Idaho Senators Jim Risch and Mike Crapo are fine lawyers and considered to be a pretty good politicians, so they both should know better.

Usually, their instincts are spot on, but to the issue of judicial appointments to the Supreme Court, they are both dead wrong. If they feel obliged to march to the drumbeat set by Senator McConnell, they should just say so and take their medicine. But in trying to make up reasons that give credible justification for ignoring the President’s recommendation of Judge Merrick Garland to the Supreme Court, our good senators both come off looking foolish.

Federal judges are appointed for life. The life appointment is a key to the principle of judicial independence, which in turn is an essential ingredient of the tripartite system of checks and balances that is the hallmark of the constitutional government our forefathers designed over 200 years ago. The politicians can’t toss a judge out of office except for impeachable cause and they can’t alter his personal jurisdiction or lower his salary once appointed. The judiciary is not supposed to be subject to the demands of partisan politics, it is not to be influenced by the topical fads of the day, and it is expected to be aloof from the demagogic demands of the people. The judiciary is to take the longest view, without fear of retribution or reprisal.

Under the Constitution, the President is duty bound to appoint judges to fill current vacancies. The Senate is to advise and consent on those appointments. The Senate does not get to say who the President can appoint, nor does it get to say when he can appoint. All it can do is vote up or down on those he commends to the Senate for advice.

The Senate leadership is currently in Republican hands. Majority Leader McConnell has declared that the President should not attempt to make any Supreme Court appointments during the last year of his term, but that positions should remain vacant until the next President takes office in January of next year. Senator Grassley, chairman of the Judiciary committee, has declared that the committee will hold no hearings on the Presidential appointments this year. By assuming the power to tell the President that he may not make any appointments during the remainder of his term, the Senate has assumed a Constitutional power that is specifically reserved to the President. This is wrong, and our Senators knows it.

The Senators both say it wouldn’t matter because they intend to vote against Judge Garland anyway, if he ever does get through the Judiciary committee, because even though they have never met the man and have not talked with him, they do not like some opinion the judge wrote on gun rights. Again, our Senators should know better.

In all of history, the efforts to predict how a future judge might rule prior to their appointment to the bench based on the appointee’s views on specific topical issues of the day has proved to be largely a waste of time. The plain fact is that whether the appointee is of considerable prominence and experience or comes from relative obscurity, no one can predict with certainty how the individual will perform once appointed to the court.
When Oliver Wendell Holmes was appointed from relative obscurity 1902, he served for 30 years, becoming the most widely cited Supreme Court justice in history. When Felix Frankfurter, an Austrian immigrant, co-founder of the ACLU and personal adviser to FDR, was selected, he turned out to be a principle advocate of judicial restraint and a sharp opponent of judicial activism. William O. Douglass was a rude political hack with nothing particularly notable about his legal skills when appointed to the court in 1939. He stayed for 36 years and become the most prolific legal writer in history. When Hugo Black, the little known senator from Alabama, was appointed, there was outrage because of his one-time membership in the KKK. He served for 34 years, and turned out to be a champion of the Constitution and its Bill of Rights. Governor Earl Warren was a Republican, considered by all to be a “safe” appointment when President Eisenhower named him to be chief justice in 1953. No one predicted that in his 13 year term, the Warren Court would become known as the most transformative court in history, ushering in significant and dramatic reforms in many areas of law.

The point is that nothing in these men’s personal history before their appointment gave a clue as to the greatness that would follow once they assumed the high court bench – whether one now agrees with the decisions that resulted or not. What a prospective judge’s views on some current issue of the day are, or how he might have voted on a given case of the day is irrelevant. The appointment is to be for life, society’s times and attitudes will change, and the justices themselves will mature and evolve. Any opinion on a topical issue of the moment is of no true significance. What one really wants know is how will that potential justice approach the issues before the court as they come up? Not what his opinion might be, but how will he arrive at it?

Is he curious? Is she willing to explore new ideas? Is he interested in new things? Is the applicant open to listen on issues thought closed? Or is the applicant more aloof, cautious in the consideration of new ideas and new concepts, and content to leave things alone unless there are compelling reasons for investigation or inquiry?

Does the applicant have a sound understanding of the law? Will she give due consideration to stare decisis, recognizing the impact of cultural and societal changes but appreciating the value of consistency and historical precedence? Will he consider all evidence with an open mind, keeping perspective and maintaining balance? Will she practice judicial restraint? The answers to these questions are far more important than how the appointee might vote on some current hot button question of the day.

Our Senators should encourage Chairman Grassley to take his foot off the brake. Let the process work. Hold the hearings, present the President’s appointee to the committee, and let everyone take a good look. Leader McConnell should be asked to relent; schedule a vote and see what happens. The Senators’ prerogatives are to vote no when the vote comes, but they should do so only after full and fair consideration of all of the judge’s qualifications – not just the Litmus tests some right wing factions have demanded of them.

These men have taken an oath to preserve, protect and defend the entire Constitution – not just those parts that appeal to the right wing of the Republican Party.

Both should rethink their position on this issue and then do their job. And they should encourage their colleagues to do the same.

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