Sometimes Judges and Senators Have to Hold Their Noses and Do Their Job

David Souter went from the New Hampshire Supreme Court to the United States Supreme Court. After President George H.W. Bush appointed him to the high court in 1990, Justice Souter spent nineteen years doing what a judge should do – taking each case as it comes, applying the law to the best of his ability, and always remembering that his job as a member of the Court was to put his personal and political beliefs to one side.

Justice Souter was principled, even-handed, and non-ideological. The same can be said for Anthony Kennedy, appointed by President Reagan late in 1987 and confirmed by the Senate, 97-0, in 1988, an election year.

Supreme Court Justices do not always have the discretion to vote their personal preferences. Two cases illustrate the point. One is the 1989 flag-burning case, Texas v. Johnson, where the Court ruled that the First Amendment protects the act of burning an American flag. The second is Snyder v. Phelps, the 2011 funeral demonstration case, in which members of a fringe group called the Westboro Baptist Church carried homophobic and anti-American signs on a public sidewalk near where a soldier’s funeral was being held.

In the flag-burning case, Justice Kennedy wrote, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right … .” Thus he joined the majority despite the fact that he found the act in question “repellant.”

In the funeral protest case, Chief Justice Roberts wrote that “if we protect the words ‘God Bless America,’ we must also protect painful words such as ‘God Hates America.’” In other words, the First Amendment does not take sides.

Fortunately, we do not ask the judiciary to serve as arbiters of social mores or good taste. This means that sometimes, as in the cases I have mentioned, judges have to hold their noses when they vote.

I have never met Judge Merrick Garland, but his record speaks for itself. Everyone agrees that he is brilliant, and most people, both Democrats and Republicans, consider him fully qualified for the Supreme Court. He does not appear to be burdened with any ideology that would prevent him from putting his personal preferences to one side when it comes to deciding difficult constitutional issues.. He appears to be cut from the same mold as Justices Souter and Kennedy.

Right now, Senate Republican leaders say that they will not even consider him. They say that “the people” should decide, in November, who gets to fill the vacancy on the Court. This is a wrong-headed idea for at least two reasons.

First, the Constitution says the “the President” shall fill any vacancy, with the “advice and consent” of the Senate. Nowhere does it say “but only if they feel like it,” much less that the “next President” should make the appointment.

Second, senators, like judges, have a job to do. How would it look if they simply refused to vote on anything on the theory that “the people” should first elect a new President, who might use the veto power more to their liking?

Nothing in the Constitution says that the Senate is required to consider every nominee, but it looks like the Founding Fathers thought that would happen. That, plus the fact that virtually every person ever nominated to the Supreme Court has received a vote, should be sufficient to proceed with Judge Garland’s nomination. Like judges, some senators may find themselves holding their noses when they cast an “aye” or a “nay,” but that’s their job.

2017-05-19T20:27:33+00:00 By |