Sunday, October 09, 2005

The #1 question SCOTUS nominee Miers has to answer

The Harriet Miers nomination for Associate Justice of the Supreme Court has created quite a bit of controversy.

The Constitution does not explicitly establish any qualifications for justices of the Supreme Court. The nomination/confirmation process is a joint effort between the President and the Senate.

For Miers, the process of 'check and balance' has been set in motion, and from Porkopolis' point of view, the #1 question any candidate for the Supreme Court must answer is, "Why do you want to be a Supreme Court justice?" The question implies a responsibility on the nominee's part to 'make the case'.

Candidate, now Chief Justice, John Roberts hit that question 'out of the park' (preemptive pun) in his opening statement:

...Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.

I always found it very moving to stand before the justices and say, I speak for my country.

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless...
That's a powerful philosophy with more than meets the eye (another preemptive pun). Robert's "...all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law..." clearly and succinctly tells us what he's all about.

As humans, our history is full of examples of disagreements being settled by the blade of the sword rather than the rule of law. The sword (using force to implementt a judicial decision if necessary) is still very much a part our system of justice. But as Lady Justice symbolizes,

our social evolution has created two additional tools that are to be exhausted before resorting to the sword.

It's no accident that Lady Justice holds her sword in a lower position relative to her blind fold and the Scales of Justice. It reminds us that we started with the sword and aspire/look, a blinded gaze at that, towards a 'higher' 'level'. Together, all three symbols (sword, blind fold, scale) represent the rule of law Roberts refers to.

They symbolize that our courts will blind their eyes with respect to the plaintiffs, defendants, issues and politics of a case and apply the fairness represented by the balanced scales. When those principles have been exhausted, the courts have the authority to work with the legislature and the executive branch to wield the sword.

Justice Robert H. Jackson once commented on the responsibility entrusted in the Supreme Court justices:

"We are not final because we are infallible, but we are infallible only because we are final."

Considering that, it's all the more important that our Senators take their jobs seriously and discern where any nominee is at on the spectrum of judgment. That spectrum utilizes a hierarchy of man-made concepts starting with facts, followed by knowledge, then ultimately wisdom.

As humans, we serve ourselves well when we make judgments with facts and knowledge, but wisdom is the thing people lack when they are accused of 'knowing the price of everything and the value of nothing'. It's what the story of Solomon tries to capture with the ruling that the sword of justice be used to 'split the baby'. It's what Judge Roberts shared in his opening statement. And it's what founding father Benjamin Franklin, an extremely accomplished non-lawyer, had. (Quick thought experiment: If Franklin were alive today, would anyone make the case that he wouldn't be qualified for a position on the Supreme Court? Using the criterion noted above, any doubt that Franklin would be able to make his own case?)

Nominee Miers has to share her philosophy and rationale in making her case for a confirmation to the highest court in the land. It's not for others to prove why she is not worthy, but for her to prove why she is. Miers needs to show the Senate, and the American people it represents, that she has a combination of education, experience and 'wisdom' sufficient enough to be entrusted with the responsibility of serving for a lifetime position as a Justice of the Supreme Court.

You're encouraged to read Dennis the Peasant's thought provoking commentary as well.



Post a Comment

<< Home