Why I’ll Never Be Confirmed to the Supreme Court

John Paul Stevens is out, Elena Kagan is about to be in. The Supreme Court of the United States, the pinnacle of the third branch of the government, is about to welcome aboard its 112th member and President Obama’s second addition to the court after Sonia Sotomayor. Elena Kagan kicked off her Senate confirmation hearings by pledging “modesty” in her future career as a member of our country’s most august court. Therein lies the problem in my theoretical confirmation to the Supreme Court (based on the extremely dubious assumption that I could be or would be nominated by some future President). A Supreme Court Justice should be many things, but modest is not one of them.

Modesty, as Justice-to-be Kagan employs the word, means deference to the legislative and executive branches in their making of law. In Kagan’s world, that simply means bending the Constitution over backwards to allow unconstitutional laws to skate by the fundamental supreme law of the land. To her would-be opponents in the Senate, Mitch McConnell’s hapless band of Republicans, modesty is a good thing since it means no “legislating from the bench” and therefore none of those annoying judicial decisions against gay marriage bans or abortion restrictions. In either guise, “modesty” from a Supreme Court Justice is improper. Instead of being that which is always and ought to be said in these confirmation hearing, modesty should be relegated to the “list” of words that gets one “Borked” right out of the room. [By the way, just so there is no confusion, Robert Bork was a terrible nominee who was rightly rejected—or “Borked.”]

What would Supreme Court Nominee Alexander Marriott say in his confirmation hearings about his judicial outlook and philosophy? I would approach such a job offer in the following manner, from most specific to most general: 1) the role precedent or stare decisis should play for a Supreme Court Justice, 2) the role of Supreme Court Justice qua the rest of the government in our republican system, 3) the Proper method of interpreting the constitution, and 4) the proper role of the Federal Government in relation to individuals and the States:


The role precedent or stare decisis should play for a Supreme Court Justice
Judges of inferior courts should be extremely hesitant about ruling against the decisions of higher courts, particularly the Supreme Court of the United States. It is in this sense that the principle of stare decisis makes the most sense for a rational judiciary. There are two primary reasons for this: 1) in inferior courts there is still a higher court to appeal any decision to and 2) stability in the law is important to maintaining respect for the law and stability in society. BUT, for a Supreme Court Justice, it is doubly important to be independent from the tyranny of erroneous reasoning of prior Supreme Court decisions. Prior Supreme Court precedents are not to be taken lightly, but those that do not conform to higher principles discussed below are not entitled to unlimited respect as final or definitive.


The role of Supreme Court Justice qua the rest of the government in our republican system
A Supreme Court Justice is but one member of the highest court in the United States and thus has a part in crafting the final word on all constitutional legal matters. This includes the ability to check the legislative and executive branches by voiding federal laws which violate the Constitution. The Chief Justice also participates in the checking of the executive branch by presiding over impeachment trials of President by the Senate. A Justice of the Supreme Court ought not to assume an unseemly deference to congressmen or Presidents because the former were elected by the people. Every Supreme Court Justice is appointed by the one officer of the government elected by all of the people and confirmed by the people’s representatives in the U.S. Senate. This indirect method of gaining their positions is appropriate and legally prescribed by the very Constitution they swear oaths to uphold. They perform an equally vital and indispensable function in the government with the other two branches and should not grovel. An independent and strong judiciary is essential to the freedom and well-being of the republic. The judiciary can only be as independent and strong as each of its individual members. Any actual abuses, true deviations from the application of the laws, or gross violations of laws or incompetence, all of these are just causes for removal and the constitution provides the remedy to the people’s most immediate and direct part of the government, Congress.


The Proper method of interpreting the constitution
The first standard of judging of the Constitution is the Constitution itself. Treaties are supreme to all other law as well, but as it would be an absurd conceit to place Treaties on par, let alone above, the Constitution, they must have a subordinate role to the Constitution. Following Madison’s advice, the next most “authentic” set of sources for expounding on and interpreting the charter are the records of the ratifying conventions that made the Constitution an operative and real government, and not just an idea written on paper. Next are the contemporaneous debates and statements on the Constitution by its supports and detractors during the ratification period. Next are the precedents established during the first several years of the government’s operations. Finally there is the body of Supreme Court constitutional case law. The only other sources of law that can be properly admitted into discussions of fundamental American law are those that existed prior to the Constitution. Thus the Declaration of Independence is a relevant source of American jurisprudence, while the common law of Great Britain is not (as Marshall decided during the Burr treason trial). International law has bearing through treaties and through informal usage and acceptance, but it cannot be superior to the Constitution in an American court of law—any American court of law.


The proper role of the Federal Government in relation to individuals and the States
The Federal Government was formed for specific reasons and was thus granted specific powers. The Constitution neither creates an unlimited leviathan nor a wimpy league of sovereign and independent states. It acts directly upon the individual citizens of the United States and is supreme in everything it does. The States have residual powers and rights, not delegated to the federal government, over issues of local prerogative as the state constitutions establish for themselves. But they are enjoined, in the Constitution, against doing a whole host of things, principally those things that the federal government is specifically empowered to do. They have no rights or powers to interfere in the enforcement of federal laws. The states are also not to withdraw from the general government under any pretext of legality. As for individuals, the language of the Constitution and the undeniable weight of all other varieties of evidence and documentation, suggest that their rights are the primary reason the government was established. In order to make that even more obvious, almost every amendment made to the Constitution relates to some province of individual rights and freedom that the government may not—explicitly—intrude upon, lest there be some misunderstanding in the foregoing articles. But the rights of individuals are not derived from the Constitution—a fact that the document explicitly recognizes—they are inherent in the nature of man. They cannot violate each other (thus there cannot be a right to life and liberty and also a right to own slaves or a right to the product’s of another’s labor) and they are the reason government’s are established—to preserve and protect these rights. Any Justice should boldly proclaim this and proudly recognize that the document they swear oaths to is the product of a nearly unprecedented and almost entirely unduplicated effort to create a government strong enough to survive but controlled and circumscribed enough to not squash the very rights it was called into being to protect. The fact that it remains in operation more than two centuries later through some of histories greatest conflicts and disasters is nothing short of wondrous. The fact that prospective Justice Kagan could not even affirm some sort of doctrine of natural rights is a sad and appalling sign of the state of the legal profession.


And so, now that I have publicly staked out such firm positions, I am further doomed should some misguided soul ever appoint me to the Supreme Court of the United States. But unlike Elena Kagan, I would never make fun of the non-informative and shallow nomination hearing process and then play right into that same process once nominated. I would, if nominated, answer candidly and honestly all questions asked of me. If it meant not being confirmed to the court, so be it. No prospective Justice should be so desirous of power as to adopt a policy of answering and at the same time not answering the questions of the Senate. And the Senators should not make honest answers, within a reasonable range of judicial and political disagreement (for instance, it is absurd to vote down a prospective justice because you happen to disagree on tariff policy while voting down a communist or fascist jurist would be most appropriate), grounds for denial. Such an attitude merely encourages and fosters the shallow, uninformative, and boring confirmation hearing process that now dominates.