American Constitution Society Roundtable Discussion on the Supreme Court

Herewith, a vital reason to have a late lunch at your desk today.


Speaking of desks, this is being auctioned off to the highest bidder. Condition: barely used. The final sales price will be nauseating, and the true cost, heartbreaking.

March 15 at 3:00 p.m., American Constitution Society panel: "The Significance of Public Confirmation Hearings for Supreme Court Nominees"

Moderator: Norman J. Ornstein, political scientist and resident scholar at the American Enterprise Institute.

Panelists: Dahlia Lithwick, Slate national legal correspondent and editor; Garrett Epps, contributing editor for The Atlantic and professor of constitutional law and creative writing at the University of Baltimore; Kim Atkins, Boston Herald Washington correspondent.

By way of extra-credit reading (and a sure remedy for insomnia) here's a re-post of an editorial I wrote in these pages on 3/3.

On the Timely Nomination, Consideration and Appointment of a Supreme Court Justice

I started writing this when the honorable Justice Scalia died; I decided to not post it, opting instead to respectfully wait for our elected leaders to comply with their hyper-explicitly defined contractual, professional obligation -- lest they risk committing mis, mal, or nonfeasance, in addition to double-crossing the loyal opposition that tenuously sustains our civil society. Having once again lost faith in same, herewith, a common man's notes.

The fact that there cannot be found within our Constitution a stated timeline requirement for the filling of a Supreme Court vacancy is meditative fodder only for, well, morons (present company included), sophists, or those opting to be willfully mis-, mal-, and/or nonfeasant.

Put another way, we are facing a critical challenge of the American intellect, the American conscience, the American heart; it is a challenge to which our noble, elected leaders, guided by the American Constitution, and the American system of governance, are more than equal.

The difference of tone and severity in the language of the two preceding paragraphs is itself perhaps a measure of the differences in methodologies, paths we've chosen, and can still choose.

We've seen and heard quite a lot these past few weeks.

Seeking legitimacy, many have looked to the words and actions of our nation's founders and their progeny throughout our history, in order to bolster their claims against or for filling the present vacancy, often, in the process, foregoing any consideration of how the political machinations of our nation's founders and their progeny remain instructive of our incumbent need to improve upon their best examples and to also avoid their foibles, rather than revering them to the point of abstraction, and even worse, forging the signatures of the dead on a blank check.

Additionally and unsurprisingly, many have looked to more recent examples of betrayals and contradictions on all sides, citing precedents of hypocrisy as if they were revelations, rather than cementing affirmations of our unacceptably ugly lapse into a quicksanding relativism that perpetuates an entropic and ultimately suicidal logic.

Put simply, we are procedurally wrestling ourselves off of a very real cliff.

And so, to reaffirm settled law (if apparently, we must), by way of a rhetorical question: is it not eminently manifest that, following a calamity or act of God resulting in a Supreme Court vacancy, any duration exceeding a minimally temporary impairment of any branch of a functioning government is an abomination, constituting at the very least a disruption of our domestic tranquility (which, to be certain, includes a fully staffed judiciary addressing all questions of law in a timely manner), and at worst, a threat to the security and stability of our state?

As a matter of course, it remains an immediate priority to have, at all times, a full court ready to preside over presently known crises (every Supreme Court action is, by definition, of unignorable, unforestallable consequence) and future, unforeseen crises (in these days of massive uncertainty -- indeed during any and all times -- it is a risky failure of The State to leave one its three institutions of checks and balances perilously remiss).

I was surprised to learn that for over a year we've had hundreds of vacancies in other courts, with appointment after appointment being willfully ignored. Do these existing judiciary vacancies affirm that we can function with an incomplete bench? Does anyone want to argue that proposition? To go ahead and say that it does, to go ahead and say that we've already survived well enough with massive vacancies in our Federal courts and in the Supreme Court, dually ignores a perhaps more rational analysis and a necessary methodology of forethought: that a continued lineage of unpreparedness-through-inaction only points to the statistical inevitability of failure resultant from these vacancies.

We already know that Scalia's absence has increased the workload of another member of the bench, creating a bogus administrative inefficiency, which alone is sufficiently problematic to require immediate remedy, and which furnishes an empirical, real-world confirmation of the (already obvious) requirement of professional timeliness.

And so, unsanctioned procedural delays that are deceptively mislabeled as mandate-based but are in reality politically-processed with artificial preservatives, constitute a patent shirking off of inherent civil responsibility.

Sure, we've all read this:

"[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

A beyond-obvious prima facie mandate is presently in place, manifested by the simple fact that our president and our senators and congresspersons are (relativism prevailing, sigh) duly elected. And this mandate doesn't have a "best if used by," nor an expiration date, but our democracy does. And that expiration date arrived when we presumed to valuate some future mandate as superseding our present, binding mandate.

And so, by way of a simple methodology, let's see what happens when we start with a bit of rare, mutually agreed-upon reality: we all know that Supreme Court Justices are contracted to a life-tenure, and that they do not serve at the pleasure of a president, who can neither fire nor remove them capriciously. And of course, neither can a senator fire, nor remove a Supreme Court Justice.

And so then, does not, in and of itself, the deliberate act of retarding the judicial nomination process, which remedies a vacancy, constitute the de facto removal of a judicial official?

Positing this simple double-negative is no inkhorn musing, nor semantic exercise; indeed, it is a elemental preponderance of the substantive and real effect that an act of negation-through-ostensible-inaction constitutes: a direct and willful contravention of the aforementioned professional contractual reality, by the willful perpetuation of a duration exceeding acceptable disruptions of a functioning government.

Retarding a timely judicial nomination process does not constitute a moral stance akin to a filibuster which, though, also, too often abused, occurs within the parameters of sanctioned legislative dialogue -- instead, it is a subversion of a codified legal process. Moreover, it is a tyrannical, monopolistic pre-emption and complete silencing of all dialogue, and as such, an act of contempt, in addition to a dereliction of duties.

As our nation faces some of the most pronounced and fascinating challenges to the holding together of our citizenry amidst increasingly widening and differing worldviews, what our polis needs right now is a fair and robust, publicly aired national debate on our judiciary. The United States of America can survive even the most contentious debate; it cannot -- indeed, no state can -- endure total repression of its most vital forensic functions.

There is nothing to fear, nothing to hate, nothing to obstruct; there is only the taking up of the good fight via the blessed means of a civil society, safeguarded from catastrophe by loyal opposition. I'm well aware that these words will be considered silly by nihilists masquerading as realists.

Additionally, there are some for whom political and/or religious beliefs are compelling overrides to the very processes of checks and balances that have safeguarded their liberties. To you I say, with an unceasing tolerance of your political beliefs, and a full respect for the profundity of your faith, that this America, founded on the avoidance of tyranny, is designed well and true enough to accommodate even the most widely disparate beliefs.

And if you believe the practice and implementation of your beliefs are being eroded, fight for them in public hearings; do not give in to the temptation to capriciously forfeit the processes that, well, make America great, lest this lapse towards à la carte tyranny be someday, turned against your own beliefs. This is not a vague forewarning; millennia of our species' history, made bloody by the sad constants of human nature and the power principle, irrefutably affirm that civility is ensured only by loyal opposition. Thankfully, this Hobbesian paradigm is not presently our lot.

If you're an elected official convinced that the president is going to make a nomination that does not sufficiently take into account your constituents' world-view (and, ahem, your, re-election) then you must, as a matter of course, earn your pay, earn their votes, by vociferously advising and consenting the president -- even a priori his announcement -- about whom you think would be a good selection.

"Advise and consent" is a clear directive. Warning a president to not perform codified duties whilst you also don't do your job is not a sanctioned means of countervailance. "Advise and consent" offers you fascinating latitude for heightened dialogue.

Simply put, you have a valuable role; intransigence, inaction are not in compliance with the advising and consenting that is mandated by your pay grade.

Put more earnestly, we have got to tighten up this ship; we have become a shoddy operation taking on water through seemingly infinite loopholes. A post-9/11 (as did a pre-9/11) world requires a genuine, dedicated citizenry and a supple, prepared government firing on all pistons. The absence of civil efficiency, the dominance of combative, proprietary mindsets renders impossible the maintenance of the level of preparedness that is required of any state, even during times of peace and prosperity; during these times of ever-unforeseen threats, we simply cannot withstand any further self-hindrance.

Lest one think that I'm scare mongering or indulging in fantastic scenarios, I daresay that our failure to imagine fantastic scenarios, our failure to be prepared is our most major, yet remediable shortcoming. I'm not scare mongering; I'm actually scared.

The weeks after the election of 2000 were for me, a fearful time. I'd grown up with a faith in checks and balances as secular religion, and though by the election of 2000, I was certainly old enough to have seen how the many actual shortcomings and untenably corrupt circumventions of the system I believed in had degraded all of us, I still thought that we could pass the stress-test of a contested election.

Regarding the Supreme Court, while I, a uninformed common man believe that the election of 2000, and Citizens United were catastrophic failures, I also believe that democracies learn as they go, and so, while I haven't been able to write-off the heartbreak of these two examples, my faith still remains.

Additionally, since my insistence on a timely appointment would seem to concur with the Democratic Party's agenda, I'll note that I am neither a Democrat nor a Republican.

In fact, the very first blog I authored in these pages was a call for an end to senatorial appointments, when, in 2009, New York had vacant senate seat.

The process can surprise you, but not nearly so much as its perilous absence or thwarting can. And so, I say again: tighten up, America. Now is the time for all of us to examine our conscience, refuse to remain idle and to re-learn the blessed responsibilities of citizens.

Let's hold loud, brash, messy, contentious senatorial hearings on a judicial nominee or nominees. And at the end of each brutal day, when we seem completely irreconcilable in our differences, let us savor our exhaustion and find renewed strength in the sacrosanct constant of loyal opposition, as we prepare for the next day's clash of ideas.

We should be approaching all of this with joy and gratitude, as we endure peacefully, given the global reality of how human nature at its worst is playing out every single day. Can we not fully comprehend how lucky we are?

A human being, a fellow American who loved his country and its philosophy, and who held beliefs so earnestly, that he made the dialectic and forensic function of the jurist his life's work, has died. A nation thanks you and we mourn with your family.

We best and most appropriately honor your service not by adhering to your views, nor by fighting for your core principles -- save for the one principle which ensures our duty and right to valiantly defend our beliefs : a commitment to a sacredly encoded, civilly conducted forensic function which on a daily basis preserves, vitalizes the health of -- and indeed, defines -- a democracy.

To wit, a page from recent history, included herein to neither support nor rebuke a Supreme Court ruling, but instead to draw from the words of Justice Scalia, a perhaps instructive joke warning against localized tyranny:

CHIEF JUSTICE ROBERTS: The union organizer comes up to you and says, well, here's a card. You can check I want to join the union, or two, I don't want a union. Which will it be? And there's a bunch of your fellow workers gathered around as you fill out the card.

MR. DREEBEN: Well, some would argue -­

JUSTICE SCALIA: And he's a big guy. (Laughter.)

This joke won't be funny anymore, if you choose to act like the bully your hero denounced.

Again, we are facing a critical challenge of the American intellect, the American conscience, the American heart; it is a challenge to which our noble, elected leaders, guided by the American Constitution, and the American system of governance, are more than equal.

Any failure to meet this challenge is symptomatic not of a failure of the American Constitution, or the American system of governance, but rather, of a crisis wherein we are ceasing to be the very republic we claim to be, before we can realize how lucky we are -- and must work in earnest -- to be, or rather, to continue to become.