Justice will be served. It will be rare. It will be bloody. But it will be served, and we will be privy to every gory detail. This is what it means to choose a new Supreme Court Justice in this day and age. Law and politics are not supposed to go together – that’s why this is painful. And with the lifetime appointment, the chosen Judge will wield an enduring kind of power. Just as with the run-up to the election in November of last year, there will be another (though different) crescendo that will be made all the louder by the echo chamber, but I’ll offer more on that another time.
I have added the Slate.com – Jurisprudence category to my links. Emily Bazelon and Dahlia Lithwick are extremely sharp legal minds who who have the greatest jobs any lawyer could ever hope for. (There are also other writers in that section of the Slate stable, but I don’t know anything about them, yet.)
But it’s all so left-wing. I really need to break out of the echo chamber so I can, at least, understand the substance, scanty though it may prove to be, of the myriad smears that will undoubtedly follow Obama’s selection of the nominee. There’s also the chance that I may not agree with every aspect of the candidate’s judicial philosophy. Something tells me that National Review Online and Town Hall are not going to satisfy the need for a more scholarly critique.
This is, or will be, good theater. The media (including ‘new’) relish the story, the controversy, the drama that just keeps on giving. That’s how everyone was with the election, and I expect much of the same this summer. Beware the pundits! Don’t get sucked into the fake journalists who are really just talking heads starring in their own version of reality TV. For those folks, the Court doesn’t matter. Obama doesn’t matter. All that matters is their brilliance and beauty as they, oh so humbly, bring you this pivotal moment in history. Where would we be without them?!?
But I eat it up also. It’s exciting and important. The hearings might get rough, but there’s an excellent chance that no one will die. All the latest technology will be employed by both those ‘for’ and those ‘against’, but in the end it will come down to the ancient process set forth in our Constitution.
And, at it’s best, the debate will be philosophical and complex. If it is a current member of the bench, we will look at opinions and briefs and law reviews. Hey! That’s basically what I do for a living. Cool! Even if it’s not a current or former judge, we will still learn everything about this person. Everything she did in her life up until this moment is fair game – everything she ever said. And we will not be looking for those ‘gotcha!‘ moments. Hopefully, the Obama people are smart enough not to select a child molester for the high bench.
No, instead, we will look at the niceties of language and thought. At our best, we will want to learn how this person thinks and predict what this person will do within the highest ivory tower this country has. Supreme Court Justices don’t make policy or write law. I don’t care how far right or left anyone thinks a certain Judge may happen to be. Whether you like them or not, their job is to decide cases. The cases make the law, but the Judges can only decide cases.
So, in those realms where the debate is elveated above the feeding frenzy, we will learn about cases. In other places, the only case anyone will discuss or remember will be Roe v. Wade, but that is to be expected from media that is more concerned with entertaining you than enlightening you. But I will hear the names of vaguely remembered cases from law school, and I will run to look them up and I will discover, all over again, the wonder of our common law. It is a living thing that changes and grows all the time. That is not a partisan utterance, but rather a documented fact that I live with every day as a modest trial lawyer. Customs become molded into law by case decisions over the years, and then the old rules change and new rules come along as human thought is not a static process.
Enjoy the show, but don’t forget to listen and watch carefully. Everyone knows how important this is, but let us share a greater understanding of how it works – not just the selection process, but the actual job that must be done afterwards.