Culture At Large

The just way to appoint a Supreme Court Justice

Dave Hamilton

With the death of Antonin Scalia, the Supreme Court now holds an empty and much-coveted seat. The news of Scalia’s death was quickly followed by political positioning and pandering from both sides of the aisle.

President Barack Obama released a statement suggesting that he would fulfill his duty to provide a candidate for review: I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone.”

And in kind, Republican leaders quickly flexed their majority muscle, stating their intent to fight any nominee. The Republican majority leader in the United States Senate, Mitch McConnell, echoed what seemed to be a chorus of tweets, press releases and statements from Republicans: “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement posted on his Facebook page. “Therefore, this vacancy should not be filled until we have a new President.”

Considering the state of many Supreme Court decisions, the quick response from both sides was to be expected. And yet, with all the positioning for political power on the courts, the question of justice can be quickly forgotten. Knowing that key decisions can end in a 4-4 draw, where judgment is then deferred to a lower court, what would it mean to appoint a Justice, justly?

First, consider the irony of the political posturing. The Supreme Court is, by constitutional measure, intended to separate the powerful political thought of the day from the legal process. And yet, here we are in a war for political turf on the world’s most powerful legal bench. It’s a sign of just how politicized and polarized social issues on the bench have become. Indeed, with key decisions in healthcare, marriage and abortion, many Supreme Court decisions have performed “somersaults of statutory interpretation” and favored ideological lines over legal precedence.

In short, we’re all biased. From liberal to conservative to Democratic Socialist, we have our own aims, goals and interpretations of legal precedence. However, history tells us that biased justice is, often, not that just.

Think Solomon. The wisdom of Solomon was most famously displayed in the account of two women who claimed the other had killed their child in the middle of the night. Each woman gave an account and testified that the remaining living baby was indeed their own, not the deceased.

Solomon’s response showed how distance greatly aids justice.

Solomon offered to cut the baby in two and divide the body between the women before him. The result? The real mother screamed in protest, while the fraud bitterly agreed. Consider the consequences if Solomon suspected one woman over the other. What if Solomon knew one of the women and her commitment to social good? What if he knew the husband of one of the women and counted his character admirable. What if Solomon knew one of the women to be a prostitute?

When political lines trump our shared commitment to legal justice, our elected officials no longer have the distance needed to act justly.

There are plenty of narratives that could have persuaded Solomon to not act as wisely as he did. The reason he was able to act wisely was because he had a certain distance. The fierce political response following the death of Justice Scalia shows the lack of distance our legal decisions have to our political philosophy. Or, to put it in constitutional terms, the statements from those in power since Scalia’s death shows how hard it is to separate the Judicial Branch from the Executive and Legislative Branches. Political philosophy has power.

Now, not all the knots of political philosophy and legal precedence can be untied. Indeed, some integration is expected, if not needed. However, when political lines trump our shared commitment to legal justice, our elected officials no longer have the distance needed to act justly.

Consider again the response from McConnell, who said that “this vacancy should not be filled until we have a new President.” This is a commitment to not act. And to promise inaction without knowledge of what we are called to act on (in this case the identity of the nominee) is the first sign of political ideology swallowing legal responsibility. When politics are in bed with judicial responsibility our elected officials seek political approval first and justice second. And the American people are quite tired of seeing justice take the silver medal.

So what would it look like to seek a Justice, justly? Put simply, it means the Senate must be willing to act.

In full disclosure, I tend to swing just right of moderate and would classify myself as a Conservative on the majority of issues. Therefore, I understand the impulse of Republican leaders to declare war on any nominee. Yet, this impulse is short-sighted and not indicative of the vows our Senators took to uphold the Constitution by conducting a “fair hearing and a timely vote,” should they need to select a Supreme Court Justice.

Justice is not without discernment. Justice would not ask our Senators to simply approve whomever Obama nominates. To act justly does not mean to act blindly.

Yet, justice would have the Senate wisely refrain from promising not to act. As citizens we should ask our Senators to fulfill their responsibility as elected officials and, if presented with a nominee, to fairly assess his or her ability and qualifications for the position.

To seek a Justice justly is to act, to discern and to pray that our elected officials have half the wisdom of Solomon.

Topics: Culture At Large, News & Politics, Justice, North America, Politics