A blog by Barry Edelson

Justice Denied

The Supreme Court Appointment Ritual Is
As Worthless As the Paper It Isn't Written On

In the mythical meritocracy where Americans like to think they live, the grotesque charade now being played out before our eyes over the nomination of a new Supreme Court justice could never take place. Not only are racism and favoritism absent from that Elysian landscape, but the rituals of politics also find no sanctuary in our perfect Union.

However, in the actual bizarro world of Washington, where liberals are routinely slandered as fascists and racists while conservatives brand themselves as defenders of liberty, and where the only truly immutable principle of the elected few is self-perpetuation, the twisted paths of government are incapable of leading to knowledge and enlightenment. We are instead doomed to endure a distasteful season of hollow posturing, apocalyptic fear-mongering and fictional hysteria over the nomination of Sonia Sotomayor to the United States Supreme Court.

During the dark days of the Cold War, many an academic and policy wonk built an entire career attempting to decode the strange, opaque politics of the Soviet Union and those of its subjugated neighboring states. We shook our heads in wonder at the pointless staginess of it all: the dictator's four-hour speech during which none of the assembled thousands dared move a muscle except to applaud on cue; the parade of tanks and ballistic missiles, presumably duds trotted out just for the occasion; the tedious declaration of socialist superiority over capitalist evil. Anyone who read the newspapers regularly through that era could have written the script themselves.

It would never have occurred to us that, from the other side of the Iron Curtain, our political customs must have also looked peculiar and incomprehensible. Those who still harbor the quaint notion that America's theoretical zeal for individuality and liberty immunizes us from the kind of numbing ritual that paralyzes governments elsewhere, need only consider the unvarying Supreme Court appointment saga. For a quarter-century or more, the process has followed a pattern that, though unwritten, is as static and predictable as a meeting of the old Politburo. We all know how it goes (feel free to complete the next few sentences yourself):

After weeks of speculation in the press and decoys by the White House, the President makes a choice of a nominee. Loyalists of the President declare the nominee to be the most qualified person ever born for the job, and laud the judge's "compelling life story" as sufficient evidence of potential judicial greatness. Members of the opposition party in the Senate at first promise a fair and respectful hearing for the nominee. Non-elected individuals and groups hostile to the President and his party go immediately on the attack, having already assembled a laundry list of dumb decisions and regrettable quotes made by the nominee (and every other nominee believed to have been under consideration), beginning with her address as junior high school class president, as proof that the nominee's one vote among nine on the high court would pose a grave danger to the Republic. Those supportive of the President, both inside and outside government, mount a counterattack (a dubious phrase, as it commences simultaneously with the attack itself), charging the other side with taking statements deliberately out of context, blowing minor issues grossly out of proportion, imputing the nominee's well-earned reputation for fairness and her love of puppies and children: i.e., character assassination. If the President is a Democrat, the nominee is de facto guilty of "activism"; in other words, of being a liberal. (Never mind the activism of conservative justices who conscientiously seek to overturn much of the jurisprudence of the last half century). If the President is a Republican, the nominee is de facto a fascist troglodyte who would trample our precious civil liberties to death. (Never mind some of the distinctly anti-libertarian opinions issued from the liberal end of the Supreme Court bench, such as allowing government to seize property for private development, to use a recent example.) As the Senate hearings grow nearer, Senators from both parties seize upon the talking points generated by the talking heads and advocacy mobs of their respective sides, repeating them endlessly in press conferences and walk-by interviews. A fiery media and Internet campaign rages, with pros and cons angling continuously for the best slots in the hourly news cycle and blogosphere. Senate staffers spend weeks framing their masters' questions for the nominee to position them well within their "base", vainly attempting to make the Judiciary Committee appear comparably less vapid than the sum total of its members' egos. In the hearings themselves, the nominee steers clear of answering any difficult questions by earnestly reiterating the sacred principle that a sitting judge, who has decided on hundreds of cases, given countless lectures and sat on innumerable law school panel discussions at which she has happily offered her opinion on every issue under the sun, cannot appropriately speculate on how she might rule on any particular case that may come before the court. And in the end the majority carries the day and, more often than not, approves the nominee, which makes us all wonder why they couldn't have gotten the whole thing over with in 48 hours and spared us from yet another hideous reminder of why we hated politicians in the first place.

Playing the Non-Race Card

Some would no doubt argue that the public unfolding of this inscrutable Kabuki actually demonstrates that government is working as intended. The fact that we all know precisely what everyone is going to say in advance does not alter the fact that the Constitutional "advise and consent" is proceeding faithfully. But we must be careful not to mistake familiarity with transparency. Like the rituals of church and temple, we have grown so accustomed to them that we have ceased to question why they exist in the first place. Even our disgust at the excesses of politicians (elected by us, the people) is part of this theatre of the politically absurd. By making caricatures of flawed human beings and oversimplifying complex ideas, the practitioners of these rituals purposefully distract us from larger issues of law and society. Inevitably, difficult issues that desperately need attention are denied an intelligent hearing. In the case of Judge Sotomayor, the most vexing of these issues is race.

If people truly believe that a judge's personal background should have no bearing on her interpretation of the law (one of the canards being leveled by opponents of the current nominee), then we ought not to care whether the Supreme Court is comprised of nine white Protestant men or nine children of illegal Guatemalan immigrants. But the notion that a mature individual's views are anything but an amalgam of her gene pool, upbringing and life experience, is so preposterous that we would be embarrassed to apply it to any aspect of public or private life — except, perversely, the appointment of a federal judge. It would be nice to think that, with the election of Barack Obama, America has indeed entered a post-racial phase. An apparently growing tolerance among younger citizens (for example, decreasing hostility toward gay marriage) would point to a less divided future. But only the very young actually grew up in these circumstances, and they may not be aware of what a hard slog it has been getting here. Someone like Judge Sotomayor clearly has had a different experience of racial and ethnic reality than any of her white male colleagues on the bench. One need go no further than the revival of "West Side Story" at Broadways' Palace Theater to be reminded of the warm welcome Puerto Ricans received on the streets of New York in the 1950s. Lady Liberty may have lifted her lamp beside the golden door, but inside that door lived the children of a previous wave of immigrants, eager to greet their new compatriots with baseball bats and switchblades. If you can't get to the theater, read Annie Proulx's devastating novel "Accordion Crimes", in which she demolishes the myth of the American melting pot in a brutal depiction of an unending inter-ethnic war of all-against-all.

Even if it didn't matter who is on the court in regard to the interpretation of law, it matters a great deal to the nation who is eligible to be on the court. If there is indeed a way out of our racist past, then the appointment of a Latina to the nation's highest court, regardless of her political affiliation, is surely a step in that direction. Those who denounce all legal efforts to achieve equality as fundamentally inimical to the rights of the individual claim that the Constitution forbids treating any person more favorably than any other, regardless of circumstances or consequences. But the very Constitution which they say is color-blind also defined a black slave as three-fifths of a human being. Of course, the 14th Amendment changed that, but that only proves that the Founding Fathers were not omniscient and did not create an ideal Republic, but a framework for government that would be continually shaped by the people of subsequent ages. Defending a Constitutional meritocracy that exists only in our imaginations is tantamount to maintaining a status quo in which the haves and have-nots remain stuck in their places — but for the exceptional few who provide anecdotal evidence that all things are possible in America.

Despite the election of a black president and the appointment of a Hispanic justice, race will continue to be a tortuous subject, fraught with personal suffering and political peril. Still, these events are a far less distorted reflection of a changing America than the reactive political sideshow we are forced to witness over this nomination. Race will continue to be discussed and agonized over, and we will move forward. To the detriment of the nation, the Supreme Court confirmation process will play no role in that progress.

May 31, 2009

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