Judicial Mystique

Al Jacobs

The day following President Trump’s announcement of the nomination of Bret Kavanaugh to the U.S. Supreme Court, countless articles appeared in newspapers and on the Internet condemning the president, the nominee and every aspect of the decision.

Perhaps one of the most critical commentaries came from Kevin O’Leary, a research fellow at the Center for the Study of Democracy at UC Irvine and author of Saving Democracy: A Plan for Real Representation in America. As a contributing writer for such publications as the Los Angeles Times and Time, as well as recipient of a Ph.D. in political science from Justice Kavanaugh’s alma mater, Yale University, he understandably views politics from a different vantage point than the president.

The title of O’Leary’s column, “Why the Kavanaugh nomination must be stopped,” certainly describes the author’s sentiments. After acknowledging the nominee’s credentials, in that “He’s a graduate of Yale Law School, a former clerk to retiring Associate Justice Anthony Kennedy, a White House aide for President George W. Bush and a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006,” his remarks become thoroughly predictable.

He laments how “Liberals are justifiably afraid Kavanaugh will fulfill Trump’s promise that he will … move the court sharply right, not only on women’s rights and reproductive freedom but also the Affordable Care Act and protections for pre-existing conditions, voting rights, religious liberty, environment protection, protection for workers and consumers and gun laws.”

Not content to merely criticize the nominee, O’Leary then questions the president’s legitimacy to make any nomination, in that Trump’s nomination “… is entirely and egregiously different. It comes about after Trump won the Electoral College because of a few thousand votes in three states while having lost the popular vote by nearly three million.” Although his statistics may be accurate, his conclusion is more befitting a high school dropout than the holder of a Ph.D. in political science.”

By contrast, it might as easily be claimed Trump won the Electoral College, as required for election to the office, while having lost the popular vote solely because of more than four million votes, possibly from undocumented aliens, in a single state – California – unalterably controlled by the opposition party.

O’Leary’s third argument is that the seat Kavanaugh will fill is a “stolen seat.” He contends President Obama’s 2016 nomination of Merrick Garland for the seat – left vacant upon the death of Antonin Scalia – rightfully belonged to Garland, and the actions by a Republican controlled Senate in declining to hold hearings or vote for his confirmation “violated both the letter and spirit of the Constitution.”

The fact is, a Supreme Court nomination must be approved by a majority of the Senate, though, as to the letter of the Constitution, there’s no specific provision dictating when and how the confirmation hearings must be conducted.

As for precedent, which you may regard as the spirit of the Constitution, we may return to the presidencies of John Quincy Adams (1825-1829), John Tyler (1841-1845), Millard Fillmore (1850-1853), James Buchanan (1857-1861), and Rutherford B. Hayes (1877-1881), where you’ll find reticent Senates refused to permit these presidents to fill vacant Supreme Court seats in a presidential election year.

If you want a more recent example, we need only go back to October, 1987, during the final year of the Ronald Reagan presidency and his nomination of Robert Bork, then a judge on the U.S. Appeals Court of the District of Columbia, to assume retiring Lewis Powell’s seat on the Supreme Court. Although Justice Bork’s credentials appeared unassailable, his reputation as a conservative law scholar and his belief the Constitution should be interpreted as written by its founders did not sit well with certain senators – wherein the majority were Democrats. With then-Senator Joseph Biden presiding as Judiciary Committee Chairman, Bork needed unbiased consideration.

As for Bork’s fate, the die was cast when then-Senator Edward M. Kennedy made the following public statement, thereby drawing the political battle lines.

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

On October 23, 1987, the United States Senate held the most-controversial vote on a Supreme Court nominee in its history when it rejected Robert Bork’s appointment on a vote of 58 to 42. In Kevin O’Leary’s castigation of the Republican-controlled Senate’s rejection of Merrick Garland, he never mentioned the Democrat-controlled Senate’s rejection of Robert Bork. It may not have been an intentional omission; perhaps he’s just a little too young to have remembered it.

This may be a fitting time to shed a little light on how the courts actually work in our fair nation, describable only as heavily immersed in the intricacies of jurisprudence. Here in California there are three principal levels of the state court: the lowest, known as Superior Court; an intermediate level called the Appellate Court; the highest titled the Supreme Court. Although appointment to a judgeship is a prerogative of the governor, they are not lifetime appointments. Tenures must be confirmed regularly at the ballot box, and if rejected by a majority of the voters, a judge will cease to be His or Her Honor. Incidentally, in case it seems strange the lowest level is called superior; this is because there once existed a still lower level known as Municipal Court, but it was abolished and its functions blended into the Superior Court.

In any event, when filing for voter approval as a Superior Court judge, an aspirant will offer credentials which include intelligence, experience and judicial temperament, as well as a vow to apply the laws as written and customarily interpreted by statute and precedent. And this is exactly what a Superior Court justice must do: follow established interpretation and procedure. And what is so at the lowest level of state court is equally so at the lowest level of federal court, known as the U.S. District Court.

However, at the higher levels justice reverts to a less conventional milieu, where personal interpretation begins to replace legal formality. At the second level of the federal system, the U.S. Courts of Appeal, the proclivities of the justices become the bases for many a decision. As one example, in the west coast’s Ninth Circuit Court of Appeals decisions will normally favor more liberal views as opposed to what are commonly referred to as conservative values.

By the time we reach the highest level, The U.S. Supreme Court, all pretense of judicial decisions based upon the letter of the law or established legal precedent has long ceased. The reason for this is fundamental; the Supreme Court is a political body, not a legal entity. Its members are selected solely for the attitudes they display and the biases they may be expected to employ when rendering decisions. The simple fact is, at the Supreme Court level, the rendering of a fair and impartial verdict is far less important than the settling of a political score.

A final word: The belief regularly bandied about is that, in the final analysis, we may rely upon the U.S. Constitution to safeguard our liberties. The most accurate commentary on this was expressed in a speech before the Elmira, New York, Chamber of Commerce on May 3, 1907, by Charles Evans Hughes, 11th Chief Justice of the U.S. Supreme Court, when he said: “We are under a Constitution, but the Constitution is what the judges say it is.”

Al Jacobs, a professional investor for nearly a half-century, issues weekly financial articles in which he shares his financial knowledge and experience. You may view it on http://www.roadwaytoprosperity.com



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