April 11, 2016

DAVIES | Politics, Supreme

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No one likes ties. There is something excruciatingly underwhelming in accepting the defeat of competition inherent in a draw. One would almost rather the opponent won, if only for a sense of closure. But no, the competitors slink away, licking their wounds and polishing their weapons, plotting their next encounter. The American spirit does not easily suffer such lack of resolution.

Neither does the legal system, the ultimate realm of decision. In its absolute form justice is uncompromising and unremitting. Yet justice is a stranger in life, like equality and liberty. Law, the interpretation of justice by those deigned qualified, is far more familiar. Law is derived from justice but it is not justice — it is right and wrong as our flawed minds and flawed societies see such familiar, concrete abstractions. We can change the law but justice will not change; we can bend and break the law but justice will accept neither.

Though justice brooks no half-measures its offspring, law, is much more accommodating. The writing, reading and altering of law allows for human disagreement. Indeed, law is the basis for the how the democratic state functions — upon the foundation of law and through its power over the law.

That said, when government must read its own writings, justice should be its guide — when interpreting law, those responsible, as an institution, must seek to clarify not to obfuscate. The law as understood by the people, their institutions and the state should be the same. Though there must always be room for argument, a common understanding of what is legal and what is illegal is of utmost importance. When the people can twist the law, the result is scandal or revolution. When an institution can twist the law, the result is anger or oppression. When the state can twist the law, the result is terror, totalitarian.

Bringing you back from such serious abstraction, let us return to the real world, where our subject is most assuredly law. Imagine this: your appeal against a death sentence (for a murder you didn’t commit, let’s add. Though I doubt that would matter much to Old Antonin) sits before the Supreme Court. A few arguments and six hundred ineffectual placards later, the most esteemed, most trusted, most high sages of Law deliver their verdict: 4-4. You get to languish on death row, surveilled by the prison guards of public opinion, until someone you’ve never met is permitted through a very elaborate hazing ritual known as “Senate confirmation.”

As facetious as such a scenario is it illustrates the need for definitive judgments.  Using basic mathematics and a rudimentary knowledge of government, one can see how a Supreme Court comprising eight justices hinders the ultimate goal of legal interpretation; 4-4 decisions result in the lower court’s decision standing but not being upheld nationally. A woman in New York might easily access her constitutional right to abortion while another in Louisiana is required to spend time in a gulag before being allowed access to even the phone numbers of her state’s abortion clinics.

Despite this judicial deadlock, the GOP (affectionately known as “the party of Lincoln”; less affectionately known as “the party of Dubya”) is set on preventing any resolution until “the people have spoken.” But the people have spoken — 53 percent of Americans believe that the Senate should hold hearings for Merrick Garland and only 16 percent believe Republicans’ justification that they are stonewalling Garland to ensure consideration of public opinion. Yet how would Sen. Mitch McConnell (R-KY) and Sen. Chuck Grassley (R-IA) know? The pair was recently seen stuffing each others’ ears with $100 bills and letters from constituents, on which were scrawled expletive-laden demands that Republicans “stop that damn Muslim from keepin’ on near-darn ruinin’” the Right’s “all encompassing control of the judicial system” which will “soon tighten over every facet of American society and stifle the propaganda peddled by agent provocateurs and enemies of the people.” Their words (paraphrased, somewhat) not mine.

The contortions being pulled by Republican Senators are surely not healthy for a man of Senator Grassley’s age. Republicans praised Garland, a universally liked and respected jurist, only to arrive in 2016 with a vocal segment of the party base suffering from a neurotic fear of judicial change (people who as children, it seems, never quite grasped the concept of sharing).

The Founding Fathers intended the judiciary be free of political taint. The Court’s changes in recent history, punctuated by this latest standoff, prove that the ideal is no more. Moreover, the Senate was created as a bulwark against populism — it has the capacity to act as a buffer between the masses, easily lead, and Justice. But again, the Senate, its members elected by the populace and happily paying the absurd cost of doing politics for such exclusive office, has been infected and pervaded by the “electoral-industrial complex.” The state and law become little more than an amorphous mass to be prodded and enticed into assuming the shape that one desires it to take.

Ideas aside, Republicans know that the Democrats are highly likely to retain the presidency and could flip the Senate blue in November. Even without a Democratic Senate, Hillary Clinton, having survived The Berning and with four years ahead, would force Republicans to grind out an acceptable nominee. If she were to continue Garland’s nomination the Republicans would look very, very stupid for not confirming him earlier. If she were to nominate a judge further to the left, conservatives will rue losing out on Garland. Republican Senators are merely delaying the inevitable and will lament the day they didn’t settle for a draw.

Alex Davies is a junior in the College of Arts and Sciences. He can be reached at ajd253@cornell.edu. Have I Got News For You? appears alternate Tuesdays this semester.

  • Man with the Axe

    If politics infuses the Supreme Court nomination process, we can blame the liberals on the court for politicizing the court’s jurisprudence, starting with Griswold, Roe, Lawrence, and now Obergefell. When the court decides to be political, by creating rights at which the founders would shake their damn heads, of course choosing justices is going to be political. You can blame Democrats for making the process overtly political in the borking of that guy, what’s his name, oh yeah, Bork. And Thomas. And Alito. Not to mention Estrada. And others. Turn about is fair play.

    Regarding the death penalty: The Supreme Court is not reviewing guilt or innocence. That’s what the trial is for. The Supreme Court is only looking at questions of law and procedure, and virtually any and all such questions have been decided many times over. These cases tend to be exercises in drawing out the process so the murderer can languish for 18 years or so before getting his condign punishment.

    • You’re misreading this if you took my words to mean that the Supreme Court is deciding guilt or innocence. Further, the scenario is described as facetious. The line about innocence is referring to Scalia’s argument that the Constitution does not provide a justification for vacating a sentence solely on the basis of innocence.

      • Man with the Axe

        When you stipulate that the guy didn’t commit the murder, you raise the issue. By the time a case gets to the Supreme Court it has gone through at least one trial, several layers of state appeals, and who knows what other procedures on habeas petitions in the federal system. If guilt hasn’t been determined by then, what is the Supreme Court going to do about it?

        I take your central point to be that because there could be a 4-4 decision, leaving the lower court opinion in force, that is by definition unjust. But my point is that justice has nothing to do with the Supreme Court’s role. They are only looking at technicalities.

        Don’t forget that there are many reasons why there could be a 4-4 decision even with nine justices on the court. One may have to recuse herself, for example, because she had a role in the case either at a lower court or when she was the solicitor general.

  • George

    If liberals are so upset about the Republican’s position, perhaps they should have thought of that when they rejected Robert Bork. What goes around comes around. (Yes, I know that Bork got a vote. Would liberals feel better if Garland got a vote and was rejected?). By the way, the Senate is being urged to “do its job.” I suggest that the President “do his job” and enforce the laws, instead of making executive orders that circumvent the law.