Saturday, February 04, 2017

The Justice, the Unjust, and Just Us

Judge Neil Gorsuch has been nominated by President Trump
to fill the vacancy on the Supreme Court

When Supreme Court Justice Antonin Scalia died almost a year ago on February 13, 2016, I was struck by the moving tributes that came from a wide array of people, including those who did not share in any way his judicial philosophy. The following day I posted on this blog a short piece entitled The Justice and the Unjust, which contrasted the rhetoric of the ongoing presidential debates with the behavior of the late justice. I posed the question of whether the presidential candidates who lauded his judicial legacy might have anything to learn from his style and temperament.

Since then, the vacancy on the Supreme Court occasioned by his death has been the target of internecine squabbling caused by the refusal of the Republican majority to allow a vote on President Obama's nominee, arguing that the seat should not be filled in the last year of the president's term and should await the outcome of the presidential election. Never mind that such an argument is preposterous and unconstitutional, it worked. A newly inaugurated President Trump has nominated Judge Neil Gorsuch, and a deeply divided Senate will take up the question of who will fill this position so crucial to the country's future. 

It seemed that it might be useful to revisit the previous essay and update the key ideas to the present circumstances. What follows is a major rewrite of the original piece, with a minor but perhaps significant adjustment to the title. I need to be clear and state unequivocally that I am no fan of Scalia's legal philosophy, and I believe that many of his decisions have been damaging to the country. Nonetheless, there are things he can teach us.

Justice Antonin Scalia was known for
his sense of humor

Unfortunately for the country, there was a Republican debate scheduled within hours of Scalia's passing. How grand it would have been if one message emanating from the death of a doctrinaire but widely respected Supreme Court justice--sometimes acerbic but often playful, willing to befriend those he opposed--would have been to see those values embraced in that debate. Within a matter of minutes, however, it was obvious that such was not to be. Instead, we got children playing in the sandbox and arguing over a pale of water and a plastic shovel.

I was struck by the glaring contrast between the whining, backbiting, inelegant, and completely shameful performances of those who would be president, and he whose death was being measured as much by the person he was as the views he held. 

But the more I reflected upon it, the more I thought that sometimes style can be just as important as substance, and may even be a pathway to achieving one's goals and fulfilling one's hopes. There is a long-standing American principle, and perhaps a larger human principle as well, suggesting that one does not have to make enemies of those who hold differing philosophical, religious, or political views. It appears that Justice Scalia was one who shared that perspective.

Justices Ginsburg and Scalia were judicial opposites
but were also the best of friends.

Justice Ruth Ginsburg, arguably the most liberal justice on the Supreme Court, was one of Scalia's closest friends. While he was the most intellectually rigorous conservative voice on the Court, he is also known for constantly seeking new insights, This can be illustrated by his role in transforming the importance of oral arguments.

Prior to Scalia coming on the Court, justices rarely asked more than a few questions and were mostly silent during Court hearings. Scalia changed all that, peppering the lawyers appearing before him with many questions in an effort to explore the legal boundaries and learn something. And most importantly, the warmth of his personality, his sense of humor, and his love of life injected a human element into his decisions and his relationships. Reading and watching television tributes about him changed my view of the man, although not my view of his jurisprudence.

The 2016 presidential election demonstrated how far we have moved away from the standards of public discourse we once knew and embodied. Now it seems that arguments are often demeaning, replete with name-calling, and accusations that opponents are liars. But rarely are these tactics constructive or informative. These politicians seem unable to prevent themselves from uttering outbursts that are immediately destined to become soundbites for hundreds, if not thousands, of replays on the 24/7 media. To the casual observer and to the international community, this is what our country is all about. Perhaps they are right. Soon we will see.

In the next few weeks, we will have a chance to test our mettle. If confirmed, Judge Gorsuch will be in a position to influence American jurisprudence, and many aspects of our lives, for over 30 years. There will be a need to explore his views at great length to determine his perspectives and qualifications. That would be true of any nominee. But there are other issues afoot that threaten to set us off on a destructive path for generations.

There will be political retribution for the intransigence of the Republicans in refusing to even call a hearing on Obama's nominee to replace Scalia. Judge Merrick Garland is a highly regarded and generally moderate judge. For no reason of his own, he was left to hang in limbo as a vacancy went unfilled for what has been a year and will undoubtedly extend for several months. Like it or not, the Democrats will exact their mess of pottage in return for this perceived sleight. It is both understandable and regrettable.

Likewise, delicate Senate procedures that have been in place for decades are at risk, driven in part by a president that seems to give not a whit about history, tradition, mutual respect or implied agreements. It is often unspoken understandings that make things work, and it is their dismissal that destroys coalitions that have served us well for a long time.

It is not a time for just us, looking out for our own interests and caring only for own victories. 

Nor is is it a time for every perceived injustice of our personal lives to be laundered in the public forum, however consequential those may have been.

Instead, we must find the inner strength to demand of others as well as ourselves that it is only justice for all that should guide our deliberations.

Whatever side we may be on, this is a time for carefully chosen words, respect for institutions and colleagues, understanding of what is really at stake, and a willingness to seek the common good.

And when the debate is over and the decision is made, perhaps our lawmakers can take counsel from Justice Scalia and slap each other on the back, tell a good story, and have dinner together.

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