Just to be clear, I happened to agree with and applaud the SCOTUS decision today regarding Second Amendment rights. You may see it differently, I know, but that’s one of the great things about our country. We can disagree on things like that. I just feel that the Second Amendment speaks to an individual right to keep and bear arms, not a right restricted to members of the militia. No, my problem today is not with what the Supreme Court decided, but once again with how they decided it. So if you are here looking for a long diatribe on the Heller case, move along. Nothing to see here.
I have now lost track of how many consecutive decisions the Supreme Court has handed down on a 5-4 split. And not surprisingly, you keep seeing the same four people on opposite and predictable sides for each question with one “swing vote” in the middle. (That being Justice Kennedy.) In any sort of sane world envisioned by the framers of our form of government, this simply would not happen.
The law is the law. It is neither conservative nor liberal, not red or blue, not Republican or Democrat. It’s simply a body of legislative work which must always pass constitutional muster when challenged. Supreme Court appointments were intended to be for a lifetime precisely to remove them from politics and bias or the influence of a fickle and shifting electorate. There are nine of them because the Constitution is not alway clear (and frequently silent) when questions are put to it, and the justices obviously will not always agree on all the fine points of interpretation. But the situation we have reached today is ridiculous to the point of parody.
People speak in unabashed terms about how we have “x number” of conservative justices and “y number” of liberal judges. Can we not see the poison we have injected into one of the most important functions in our judicial system? There shouldn’t be any conservatives or liberals on that bench. And in the majority of cases, impartial justices should be able to achieve a consensus much closer to unity on legal questions. (Or, at the very least, have more of a random sampling of which justices come down on which side.)
Our presidents have stacked the deck with a continuing parade of partisan hacks. I’ve fallen victim to this gang mentality myself. Being more of a social moderate-to-liberal, Libertarian type, I found myself worried that the court was “drifting too far to the right” for my tastes. Well, I’m as bad as many of the rest of you. With that admission taken care of, I would propose a new way to vet nominees for SCOTUS: leave it to the blogs.
Here’s how it should work. As soon as a nominee is suggested, turn the name over to Powerline and Daily KOS. If you find one of them saying, “Look at how badly this clown ruled on Coyote vs. Roadrunner in 2003! We can’t have this idiot on the court!” do a quick check of the other blog and see if they are saying, “The excellent ruling in the 2003 Coyote vs. Roadrunner decision clearly indicates this is an excellent choice.” Should we find both of these conditions present, toss the candidate out on their ear.
But if we manage to find a candidate that has John Hindraker saying, “Oh my God! Look how they ruled in Tom vs. Jerry! No way!” and then you see Markos Moulitsas Zúniga screaming, “Are you kidding me? Their ruling on Micky vs. Minnie clearly shows they MUST be fillibustered!” well… you may just have yourself a winner. If we restrict our choices to those judges who completely enraged the hyperpartisans on both sides at one time or another, we might just begin to repair our highest court.