Confirmation History Lesson 101

Tags

confirmation hearings, Congress, FDR, Hainsworth/Carswell, John Cornyn, Robert Bork, SCOTUS, Sonia Sotomayor

Things have gone awry. I don’t think many people would disagree about that, though you could probably get as many solutions as there are people if you asked. I’m not here to offer mine necessarily, but to point out that what worked two hundred plus years ago in a mostly agrarian land ain’t exactly workin’ today.

Now here in Iowa, we see things a bit differently no doubt than do the Easterners with their snooty, older than you, center of the universe mentality, or than the Westerners with their bored, soooo yesterday kind of dismissal of the world as mostly irrelevant.   We provided for the fact that our state constitution needs a periodic look see. Every ten years we actually vote on whether to hold a constitutional convention or not, to reform, add, subtract, or throw out and start all over, our experiment in government.

I’m not suggesting that we do that federally, no doubt it would cause quite a mess. But what to do about non-functioning institutions is a serious question that we should look at. Case in point, the confirmation process for new appointees to the Supreme Court of the US.

The circus, called the Confirmation hearings, have begun if you hadn’t noticed. All the players, members of the Senate Judiciary Committee, met with the nominee, smiled for the cameras, promised civil discourse, and claimed to have an “open mind.” 

 Once in the arena, things of course go the usual course. One Republican tries to embarrass her with questions about “empathy” and “smart Latina women” questions, punctuated by nose-up-the-butt-boy, Lindsay Graham asking her, “Do you know that you are considered the most intemperate of justices by far than any of your colleagues?” This is followed by one Democrat who lauds her accomplishments and suggests all the “right” answers to the questions, called “rehabilitating the witness.” This goes on back and forth all day, and into the next.

It’s all predictable, and in the end mostly the vote will be along party lines, except for a few who will vote for her only because they face elections in heavily Latino populations or have some other hidden agenda which we won’t know about.

Such has been the way things go for a very long time. It started, dare I say, during the terms of FDR when Franklin got tired of having his progressive legislation dumped by the sitting SCOTUS and was hell-bent on “packing” it with more justices, all of whom, were expected to uphold his laws. That didn’t work, but it started the idea I think that it was important when picking a justice to have some idea what they might do beyond decide cases.

In other words, how they decided because more important than qualifications. Duh, who would have guessed. Qualifications was a pretty impersonal thing after all, most reasonable people can agree that one meets or doesn’t meet them. Sarah the Moosehunter doesn’t meet any qualification for anything beyond having an active womb and carving a nice steak on the ground. William Jennings Bryant met them all for being a judge. See how easy it is?

We started to realize how darned important this stuff was when Eisenhower picked Warren as chief justice and got a whole lot more than he bargained for. Most of our search and seizure rules and Brown v. Board, and all that liberal stuff came from him. Eisenhower considered it one of his worst decisions, picking Warren that is.

But nobody seemed very good at predicting, so things go around to looking at “character.” Hainsworth and Carswell were dismissed by the Senate as unqualified. In reality, they both got caught with too many arguable racist comments and rulings to be fit for office in the still new days of racial equality ushered in by Brown, and Johnson’s voting rights legislation. Whether they were qualified in terms of legal knowledge, heck I don’t remember if anyone even cared.

Then came Robert Bork, and a new era began. Here, no personal character issues upset the apple cart, but judicial philosophy entered the arena as the tried and true means for determining one’s “qualifications.” Bork was appointed by Reagan and was an “originalist,” believing that the proper philosophy for deciding cases was to get as close to the original founding fathers intent as possible. This of course means no such things are “privacy” (not mentioned) and that sort of thing, and that means the death of such things as Roe v. Wade and other “privacy” type cases. He was not confirmed, and now not being confirmed because of philosophy rather than qualifications is called “being borked.”

Now we are up to our necks in “judicial activism” (read judges making law), versus “strict constructionists” (read originalists). In actuality as we all pretty much know, judicial activism means essentially, not doing what I want you do to do.

And so we are subjected to “confirmation” hearings that are three-ring circuses where the same questions are asked again and again. No senator is allowed, apparently, to say, “Gee, Senator X asked all my questions thoroughly, I have no more questions.” No they just ask them all over again. Instead of determining whether Judge Sotomayor is qualified (given she’s been confirmed twice now, that would seem rather obvious), we are part of this game of “how this plays in Podunk,” and jockeying for position for the next election cycle.

It’s all a monumental waste of time, ours and theirs, and accomplishes nothing except to insure that payback awaits the next change in party and the next opening on the Court. We have gotten marginally better at figuring out how they will act on the bench, due to some poli sci profs and computers, and so it all matters in the end. But the show is about nothing but, well show.

I keep wondering how Cornyn is going to vote though. I hear he’s getting booed in Texas and well, they are pretty darn chuck full of Latinos there. I bet he’s hating this thing to the max. One takes one’s amusement where one can.