Suppose that you were judging a bake-off among contestants who didn’t know the difference between sugar and salt. Suppose that you were a judge on a show like “The Voice” and the contestants did not know if they were on or off key.
Now suppose that you are a justice of the U.S. Supreme Court and you are rendering decisions about laws made by legislators who are bought and paid for, and often times, are not the brightest bulbs on the tree.
Neil Gorsuch, President Trump’s nominee to fill the seat that has been vacant “without cause” for nearly a year, has repeated the so-called pious truth that “we are a nation of laws, not men” (and women to those who want to be fair and accurate about it). Conventional wisdom says that the law is held in such high esteem that it can only be adjudicated in marble buildings with high ceilings where whispering is often a crime.
The men and women on the U.S. Supreme Court sit to render profound judgment regarding the constitutionality and propriety of …. what. Well, they assess the judgment of those who fashion our laws at the federal, state and municipal levels.
The separation of powers, the idea of a branch which interprets the laws the legislative bodies pass and executive branches ratify and enforce, makes enormous sense. It is a cornerstone of our constitution and one of the ideas (unlike the acceptance of slavery) that survives the test of time. And perhaps as the founders envisioned American government, it would be populated by the “best and the brightest” among us.
If that was ever true, it certainly is not so now. In a recent Gallop Poll, the American people gave Members of Congress an 8% positive rating, slightly above that of lobbyists. And by the way, judges weighed in at only 45%.
It was only forty years ago when a United States Senator ran for re-election and accepted no campaign contributions. Wisconsin’s William Proxmire spent $200 out of his own pocket to win in 1976 and again in 1982. In the 2016 race for the Senate seat in Wisconsin, the total amount spent by the Democratic candidate was $24,336,176. And that candidate (who lost), was Russ Feingold, one of the authors of the 2002 McCain-Feingold Act regulated the financing of political campaigns. Where are the days of the $200 Senate campaigns and the candidates who could win public favor without money?
So to say that members of the U.S. Senate spend more time raising and spending money now and less time crafting the laws that judges will eventually adjudicate is an understatement. Races for the U.S. House of Representatives now cost on average well over a million dollars. At the state level, the money is harder to track but it is splurging. It takes a very special kind of person who will run for state office by openly raising money from voters rather than interests, and who will focus on meaningful rather than symbolic legislation.
If Judge Gorsuch is confirmed to the Supreme Court, he will continue the recent tradition of all justices having gone to law school at either Harvard or Yale Universities. Obviously, these justices have had the finest of training. But for what? To wrestle with the same philosophical issues that our founders did?
Not exactly. Instead they need to clean up the messes of state legislatures that spend their time deciding which students can go to which bathrooms. Or the legislatures that say that a permit to own a gun is an acceptable form of identification to vote but an ID from a university is not.
It is true that many of our legislative bodies do need adult supervision and those adults need to be wise, compassionate and responsible. But the key to being a responsible adult does not lie in statute. Adulthood may involve understanding and enforcing rules, but those who supervise others know best how to apply given rules to different situations involving different people. A Harvard or Yale law degree is not always necessary for that.
So as we consider whether or not Neil Gorsuch is the best person to sit on the U.S. Supreme Court, let’s remember how his nomination is the result of malfeasance on the part of members of the U.S. Senate who would not consider President Obama’s nomination of Merrick Garland with over 300 days left in his term. Let’s also remember that many of the laws that the justices will be interpreting will be ones that were crafted with the same degree of fairness and adult behavior as those same Senators exercised in filling this vacancy.