It always amazes me when someone claims that if he or she does not agree with some issue in public policy that the wrong they see is “unconstitutional”.
What do they mean? Are they referring to a specific provision in the constitution? Or are they just referring to what they feel is a general intent of the constitution and have they even ever read the constitution?
The constitution is a framework and a model of our government and law, but it is often short on specifics (not always).
For so long now, though, we have accepted that the nine justices of the Supreme Court have the job of deciding what indeed is constitutional and what is not, this even though the man on the street seems to automatically know what is constitutional and what is not (we of course are all entitled to our opinions).
But the fact that the justices can decide on the constitutionality of laws, thus overriding legislative decisions, and the fact that in so doing they can have such power over our lives (Roe vs. Wade and quite possibly a future decision on same sex marriage) makes appointments to the bench so extremely political. And at the same time people on either side of an issue often go to great lengths to disavow the notion that they would not support a justice over pure political reasons – it’s their ability to interpret the constitution, they will insist. But in interpreting, what would any human, justices included, have to work with? He or she has education certainly, but that cannot be separated from life experiences, personal feelings, individual opinions, all of these things that shape individual thought and opinion. And nominees for the high court are nominated by the president, and president is an elected official. He (or she one day) is a politician. So ipso facto it is at least partly (well all) about politics.
I think there is a conflict a president must face, or a divided set of reasons a president uses in choosing a nominee. We would hope that on one level the need for someone to have the ability to listen to both sides of an argument and then come up with a fair decision based on the law and not personal preference is one of the criteria the president uses. But the president is a politician and must consider the wants and needs of those who got him to where he is, along with all of the public. If the president is, say, a liberal, the president is obviously not likely to select a nominee who is seen to have a conservative record, and visa versa. If the president were middle of the road (and no president in my lifetime has been labeled as such that I can recall) the nominee might likely be middle of the road (but most people would probably see such a person as conservative, or worse yet, inconsistent).
So what I’m trying to say here – and for some reason having a hard time doing it – is that all this talk about having someone who can properly apply the law is almost (almost I say) disingenuous – sure we as good citizens have to want a justice who can do that, but what many of us want is someone who will properly apply the law the way we see it. It’s really pretty much political.
And Supreme Court picks are always a gamble. A president does not always get what is expected.
Conservatives have had worse luck in getting surprised than liberals, as I have read it. The first president Bush appointed Justice David Souter, thought to be a conservative. He turned out to be a more reliable vote for the liberal faction on the court (his retirement has opened the way for President Obama’s nomination of Sonia Sotomayor, whom liberals are hoping will be liberal enough and conservatives fear will be way too liberal). President Eisenhower thought he had appointed a conservative to be Chief Justice of the Supreme Court when he selected California Republican Governor Earl Warren. The Warren Court became the most liberal ever and anathema to conservatives. The Warren Court was seen by many as going far beyond the letter of the law and creating judge-made law in its decisions. Racial quotas in hiring, forced school busing, letting criminals go because they were not read their rights (so-called Miranda warnings), I think are part of the legacy of the Warren Court, along with the unconstitutionality in racial segregation of schools and other public services. So on the one hand, the Warren Court can be blamed for criminals being let off due to technicalities and on the other hand it can be credited with making it illegal to prevent someone from, say, attending a particular public school due to the color of one’s skin or from forcing a black person to sit at the back of a public bus.
I don’t find it too surprising that some still cling to the belief that justices should not be political and should stick to the exact letter of the law and not do anything to change the law, for it was not until the case of Marbury vs. Madison in 1803 that it was accepted that the high court could even decide the constitutionality of a law, based on the theory of judicial review. I guess before that people thought the high court was just the ultimate arbiter in cases and that the constitution was self-explanatory and never subject to change in its application.
Perhaps some still do.
Personally I would like to see an open-minded justice who doesn’t think the law has to be stuck in some kind of time warp but who nonetheless will stick to the core principles of the constitution. An example, holding that separate but equal is unconstitutional, as in Brown vs. The Board of Education, is a good decision, for if blacks and whites have equal rights then there should be no purpose to separate them. But going a step further and ordering school busing to force desegregation of schools (as was done) goes way beyond the scope of the court and the constitution (my opinion, of course). Another example: holding that a test for firefighter promotion is discriminatory if it had questions on it that were not relevant to the position but seemed to be designed to eliminate people who did not have the same cultural background as the majority would seem correct, but simply holding that because no minority applicants passed the test, regardless of what the content of the test was, that the method of promotion is discriminatory seems to me to be wrong, illogical, and again way beyond the scope of the court (but of course the current state of federal law does not seem to agree with my assertions here).