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U.S. Senator Leahy, Chairman of the Senate Judiciary Committee, Presents His View on the Upcoming Supreme Court Nomination to Replace Justice Stevens : What is Justified and What is Not Justified

By Andis Kaulins

U.S. Senator Patrick Leahy from Vermont, who is chairman of the Senate Judiciary Committee, gives us a partisan Democratic senatorial -- political -- view at The Burlington Free Press on the upcoming nomination of a Supreme Court Justice to replace Justice Stevens. Take a look at:

My Turn: On choosing a Supreme Court nominee.

Although we arrive at different conclusions regarding some of the political issues that Leahy discusses in his article, we fully share Leahy's closing statements:

"One way to gauge the president's choice is to apply this test: Is this a person who will approach every case with an open mind and a commitment to fairness? Can every American feel a sense of trust about the decisions this nominee will cast on cases that affect our constitutional rights and freedoms, and the blessings we enjoy and the struggles we face in our daily lives?

Is this a person who savors and honors the words chiseled in the Vermont marble above the entrance of the Supreme Court?

Those are the words which pledge, "Equal Justice Under Law.""

One way to try to reduce the strong divisiveness that currently marks American politics is perhaps to figure out how both the Democratic and Republican political parties can take mutually desirable general principles such as the above and proceed from there to apply to them not only to substantive matters such as the selection of Supreme Court Justices but also to the adoption of essential legislation in disputed areas such as intellectual property rights (especially patents and copyrights) and privacy law, where political parties should -- optimally -- come to agreement on the specific "need" to be legislatively addressed and then draft laws which act as solutions for the problems that a particular need poses.

As political centrists, we can not therefore share Senator Leahy's -- in our opinion - overly divisive views which split the court into voting factions, with a faction of five Justices allegedly deciding certain cases wrongly:

"Five Justices on the nine-member court have rewarded employers who covertly discriminate against their workers in pay discrimination cases. Five justices have made it more difficult to prove age discrimination in the workplace. Five justices gave Exxon Mobil a $2 billion windfall by reading into the Constitution a protection for corporations that simply does not exist, greatly reducing the oil giant's liability for the damage done by its oil spill. And five justices have opened the floodgates to corporate campaign contributions in a decision that threatens to drown out the voices of ordinary citizens in the political process."

Such divided decisions have -- rightly or wrongly -- marked the history of the Supreme Court, not just in the modern era, but also historically on both sides of the political fence, so that no one side should be complaining when they think they are suddenly on the short end of the stick.

Senator Leahy is absolutely wrong in saying for example that five Justices had somehow read into our Constitution "a protection for corporations that simply does not exist". In fact, Senator Leahy, the United States Supreme Court -- and that Court alone -- decides what protections exist under the Constitution, not the Senate Judiciary Committee. That is how the system works. Checks and balances. The citizens are obligated to abide by such decisions and to accept them as law unless they are reversed at some future time, or unless new legislation is passed.

No one can say that these protections "simply" do not exist because they "simply" do not agree with the Court. There are many decisions of the Court that we ourselves do not agree with -- but whatever the U.S. Supreme Court decides, that is the law, and we must abide by it.

The Congress in its legislative capacity has many options to change the status of the codified law in any given area of government, also in areas where the Court has spoken judicially -- and that is where Congress should be directing its attention, not at the Court itself. E.g. abortion should not be a Court issue -- it is, properly drafted, simply a legislative problem. No matter which way one leans politically, there are Constitutional limits that must be observed in drafting.

Lastly, if the mass of members of the U.S. Congress had qualifications on a par with the U.S. Supreme Court Justices, which they do not, then the United States would be a far better place. Maybe some work should be done to get the political party leadership of the Democrats and the Republicans to "up" their standards for Congressional representation. That would already be a big step forward. Too many Congressional elections are simply populistic "popularity" contests, leading to the election of people with little law-making ability and little understanding of the principles of American government -- principles which have made America such a strong country.

Or to put it in terms everyone can understand -- it should not be sufficient for Congressional membership that an opinionated "pretty face" espousing what the uninformed populace wants to hear, can earn a ticket to Washington D.C. to formulate the nation's laws. At the least, the party leadership of all political parties should work to get competent people into the government.

As written at the Harry S. Truman Library and Museum:

"Mr. Truman entered the Senate humbly and perhaps with a feeling of awe. Before going to Washington, he had read all the biographies and magazine articles he could find about his new colleagues. Most were college graduates. There were former governors and longtime House members, judges of state supreme courts, financiers and state political leaders.

But Sen. Hamilton Lewis, the Democratic whip from Illinois, soon relieved him of any feeling of inferiority. "Mr. Truman," he advised the freshman senator, "don't start out with an inferiority complex. For the first six months you'll wonder how you got here. After that you'll wonder how the rest of us got here."

Perhaps that is worth remembering when writing about the U.S. Supreme Court. There is seldom ANY doubt HOW or WHY any Justice got there. One may disagree with them, but their qualifications, with few exceptions, are exemplary, quite apart from their political leanings. When that can be said about Congress - then we have a winner.

Full post as published by LawPundit on May 09, 2010 (boomark / email).