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Friday, March 02, 2007
Thomas Sowell :: Townhall.com Columnist
High Court and Low Politics: Part IV
by Thomas Sowell
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One of the sad aspects of studying history is discovering how often petty considerations influenced the direction of momentous events. That is one of the painful aspects of reading about the Supreme Court in "Supreme Conflict" by Jan Crawford Greenburg.

That insightful book reveals the struggles among politicians over the choosing and confirmation of Supreme Court nominees -- and the struggles within the High Court itself over the difficult and divisive issues that come before it.

Perhaps the saddest thing in the book, though mentioned only in passing, is that some "highly qualified" potential nominees for the Supreme Court "had not wanted their names considered" because the Senate confirmation process had become "too bitter and too vitriolic" and "they just didn't want any part of it."

The momentous and lasting repercussions of Supreme Court decisions mean that people of the highest caliber and character are needed on that court. There are too few who are "highly qualified" to lose any of them.

The ugly and cheap circus atmosphere of Senate confirmation hearings is just one of the factors which cause top notch people not to be nominated, while others who are little more than warm bodies are seated on the highest court in the land.

According to "Supreme Conflict," Circuit Court Judge Laurence Silberman was passed over as "too controversial" for a Supreme Court nomination, in favor of David Souter, who was the closest thing to a blank slate that any human being could be.

Judge Silberman would have been one of the great Supreme Court justices of the age, while Souter has been one of the worst. The difference was momentous -- and disastrous -- for the whole future of American law, especially in a court with so many 5 to 4 decisions.

The quota mentality has been another factor filtering out the best in favor of the politically expedient. Even presidents who attack racial or sex quotas succumb to the quota mentality themselves. That is how Ronald Reagan made his worst appointment, Sandra Day O'Connor, who used rhetoric as a substitute for logic.

That is how George W. Bush nominated Harriet Miers, whose inadequate knowledge of Constitutional law became so painfully obvious during preliminary discussions with Senators that even Republican supporters of the president, inside and outside the Senate, urgently appealed to him to withdraw her nomination.

Now the next big push for a quota nomination is for the first Hispanic to be put on the Supreme Court.

Attorney General Alberto Gonzales would probably be an improvement over some -- perhaps most -- of those currently serving on the High Court. But he should be nominated only if he is the best person available of any race, color, creed or national origin.

The Supreme Court does not exist for feel-good photo ops. The difference between the best and the second best can be momentous in the lasting consequences of Supreme Court decisions.

Some of the most disheartening glimpses inside the Supreme Court in "Supreme Conflict" are of the petty considerations that influence how some justices decide issues of historic consequence.

Not only Justice Anthony Kennedy's flip-flops on Constitutional issues but also his expressed concern over what public reaction would be to the Supreme Court's decisions betray someone who cannot keep his eye on the ball, even when it is the biggest ball around.

Justice Kennedy's fascination with foreign law as a basis for decisions about American law suggests a disregard for the Pandora's Box that this opens. It might also suggest someone overly impressed with being part of the worldwide legal Olympians who need to impose from on high the way the rest of us should live, regardless of what the Constitution of the United States says.

Justice Sandra Day O'Connor's over-sensitive reactions to criticisms of her decisions by dissenting justices -- whether William Brennan on the left or Antonin Scalia on the right -- also comes out in "Supreme Conflict."

Even after her retirement, Justice O'Connor refused to deal with the substance of Justice Scalia's criticisms, on grounds that he apparently did not express them nicely enough for her taste. Whether those criticisms were valid seems not to have been her concern.

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About The Author
Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.
 
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What else is new?
"Justice Sandra Day O'Connor's over-sensitive reactions to criticisms of her decisions by dissenting justices -- whether William Brennan on the left or Antonin Scalia on the right -- also comes out in 'Supreme Conflict.'"

*Shrug* Did anyone expect anything different? In my experience, it's in a leftist's nature to take criticism personally, because their value system is predicated upon their egos. (Incidentally, I've found this to be especially true of female leftists.)


-- Milo

O'Connor was the personification
of mediocrity, with Souter hanging in.

Alberto Gonzales
Please, no. For an interesting take on Gonzales, check:

http://streetlevel.townhall.com/g/286696ea-faa9-4b36-9767-1af6ea6be93c

The Senate hearings
are a joke, whether they be for a Supreme Court nominee or anything else. They need to remove the cameras so that the hearings can be returned to more of what they are intended for instead of another chance for the politicians to bloviate in front of a camera for reelction.

Nominating Supreme Court Justices should be removed from Washington entirely. The court became politicized as early as Marboro vs Madison, therefore it should be treated as another political branch.

Expand the court to 50 justices and give one to each State to nominate.

Yo,Vic...
...you brought up one of my pet peeves about these silly hearings that I have been thinking about for thirty years now.GET THE DAMN THINGS OFF NATIONAL TELEVISION!These windbags get a million dollars worth of free publicity for their next re-election campaign.They don't talk to the nominee,they give speeches to the home folks at the countrys expense.Everyone who has seen commitee hearings in person on any subject,from either House,knows that usually there are only two people on the diaz present:a representative from the majority and one from the minority.But as soon as they put the hearing on TV,there isn't a vacant seat.Remember the House hearing on steroids in professional sports?Two tiers of politicians,all wanting face time.Now THAT was important to the country,right?And the really funny thing is,it doesn't change a single vote.They ALL know how they are going to vote before the hearings start.But the average voter is impressed with this crap,with the very active help of the news media.

And another thing ...
...that Dr Sowell mentions:The quota crap.I remember when their was a "Jewish seat",that had to be filled by a Jewish nominee;the "Catholic seat"that had to be filled by a Catholic;a "Black seat" that had to filled by a Black;a "womans seat" that had to be filled by a woman.Unbelievable.

However,we have a representative democracy,so the blame must go to us citizens,en masse.

To Nam65-66
Yes, get it off TV. There is nothing more sickening than Ted the swimmer bloviating about Stare Decisis. I refused to watch the hearings but was forced to hear his bloviations every time Fox did an "alert".

Vic
The swimmer probably thinks Stare Decisis is the latest "in" brand of single malt.

To Moonbat Exterminator
His definition is "presedent set by the liberal warren court", everything else is subject to reevaluation.

Here's a question
You all are right in these posts about the inadequacies of many of the SCOTUS justices and the politicians who "try" them at the hearings. Why is it that "we the people" keep electing these folks instead of people like Dr. Sowell? I know he probably wouldn't run because the level of discourse in the average poltical campaign is way beneath him and, in spite of his brilliance, he wouldn't be able to expound his ideas in 30 second sound bites. But Dr. Sowell is not the only bright star in the universe, there are plenty of others, some appear regularly in TH. I'm afraid that, as voters, we have participated in the coarsening of the debate and the political process because we keep voting for the incompetent boobs that hold forth on both sides of the aisle. So the question is, what are we, as voters, willing to do to correct this situation? It's going to start in the primary process at the committeeman or selectman level and work up. Ultimately, it's up to us. We can whine or we can get off our duff and get something done. He said as he sat at his computer whining and not doing something.

Mr. Right:
.
I think the answer to your question is in the following paragraph:

Pathological Politics

“…Because voters are rationally ignorant (the costs of gaining particular kinds of information are greater than the benefits since one vote is essentially meaningless), politicians must employ a language designed to evoke emotion - enough emotion to motivate the right people to turn out and vote, Thus, politicians rarely speak with precise meanings, marginal calculations, or logical reasoning; instead they manipulate affect, raw emotions, group identifications, and even hatred, envy, and threats. Because premature commitment to an issue can cause one to end up in a minority position, successful politicians equivocate, hint, exaggerate, procrastinate, ‘straddle fences,’ adopt code words, and speak in non-sequiturs. Understanding the politician is therefore extremely frustrating for those who value precise statements. But note that this problem is not the fault of the politician; it is rooted in the rational ignorance of voters, the distribution of conflicting sentiments among voters, and the nature of collective endeavor. What all this means is clear: Political communication is rarely conducive to rational or efficient allocation of scarce resources. This does not mean that the individual politicians are irrational in their choice of language and symbolic activities. Waving the flag and kissing babies are practiced because of their tactical value in an activity that is at once a rational game and a morality play; in that conjunction lies the endless fascination and frustration of politics.”

"Beyond Politics," Mitchell & Simmons, Westview Press; p. 73

Mediocrity
We've had and still have some real clinkers on the Supreme Court. But, then again, somebody said the mediocre have to be represented, too.

dollface
Your quote about the mediocre being represented was made by Republican Senator Roman Hruska of Nebraska during the usuccessful appointment of Judge Carswell by President Nixon. Hruska was himself mediocre, at best. I just wonder, the take here is that quotas result in justices that people here disagree with. Anyone here really think Clarence Thomas was the very best person available and that his race was not a factor? It is unusual to see Republicans practicing affirmative action.

Vic
Marbury v Madison, not Marboro.

Just FYI.

Mr. Right
You also forget the selfish interest of voters, and the tendency to see the "other guy" as the problem, and, lastly, the tendency to wait for someone else to act first.

In other words, their own guy brings home the pork, so he is OK. And, even if he isn't the best person for the job, he's better than the ones from other states, who should be removed first.

It is an attitude that will keep us from ever having any substantial reform.

Kicking and Screaming
I believe it was Robert Heinlein who suggested in one of his novels that a primary qualification for the presidency should be that the candidate would not want the job and would have to be dragged, kicking and screaming, to the White House. Any indication whatsoever that the person wants the job would make him unfit for the job.

Wouldn't it be great if we could somehow apply this to all public offices and particularly to SCOTUS? Those "highly qualified" candidates who refused to be considered might well have been our very best (but for a lack of courage or an aversion to public humiliation).

RiverKing
Heinlein was right. Even in the Old Testament, the best leaders were the reluctant ones minding their own business until they were compelled to serve.

RiverKing
The idea that rulers should be people who don't want to rule may be in Heinlein, but it can be found earlier in Plato's Republic.

Milo D. Cooper

Excellent observation. I never thought of that, and it certainly explains why my sister WILL NOT discuss politics with me. She always takes it so personally.

Vic & Nam

There is a better solution than taking the hearings off of TV:

Repeal the 17th Amendment.

After the 16th Amendment, the 17th is the worst mistake we have ever made as Americans.

RiverKing

I like the way Walter E. Williams put it.

"If the American people would vote for a guy like me, they wouldn't NEED a guy like me."

Impeach the Supreme Court
The disturbing fact that Justice Kennedy is still sitting is beyond acceptable, and says volumes about the people's glaring lack of Constitutional knowledge. This jurist is clearly suffering from a total disconnect from what his duties require of him. He should be instructed by the people to cease, and desist from giving consideration to what other countries may or may not be doing in regard to administering the laws in their respective lands. He has been given a pass on this and other egregious musings which must be stopped. It is an absolute fallacy that a Justice cannot be removed because of so-called life tenure. Anything viewed by the people as being unconstitutional can be put forth by our representatives as reason for impeachment. Generally speaking the considering of that possibility will bring most of them back to the realization that their respective branch of the Federal Government contains the least, not the greatest power.

I love
how the left is so frightful of a conservative bench.
As Sowell says,
"...while others who are little more than warm bodies are seated on the highest court in the land".

Liberals have little worries, given the discussed "circus atmosphere"
5-4 will be the count for along time!

Supreme Court
Major kudos to Dr. Sowell on his outstanding articles on the Supreme Court. He really hits the nail on the head with his insightful appraisal of the many foibles of Supreme Court.
It is utterly appalling to see the number of cases in which the members of the court took it upon themselves to "legislate" major issues into law. A prime example is the 1982 case of Plyler v. Doe. In this case, five members of the court decided to legislate a major immigration decision finding the Mexican children had a Constitutional right to a free education in the United States. In the 1960s and 70s, many Mexican families brought their children across the border into Texas and placed them in Texas schools. Finally, due to the financial strain of the growing influx of Mexican children being enrolled in schools, Texas passed a law that children not legally admitted to the United States could not attend Texas schools.

An appeal was brought and finally ended in the Supreme Court. In a 5-4 decision written by Justice Wm. Brennan a ruling was issued stating that the Mexican children had a Constitutional right to attend American schools under the Equal Protection clause of the 14th Amendment.
Brennan went on to say that the Court was acting to make up for Congress' lack of "effective leadership" in dealing with this serious problem.

This case is a classic example of what Dr. Sowell talks about in his excellent articles.

Thomas is "not qualified"
Thomas is not qualified to write about the Supreme Court. He is not a legal scholar. And he doesn't seem to put much energy into preparing his columns. It looks to me that his "research" for these last four columns was: Reading one book.

Thomas, try to figure out what you are competent at, and stick to it.

Please save me
Gonzales better? Supports affirmative action, illegal immigrants, goes after border patrolmen while giving a pass on drug smugglers and leakers of the most sensitive information. Anyone remember Mr. cash-in-the-freezer Jefferson who the FBI, at least thought important, until Bush-Gonzales decided to throw out the evicence and sit on the case. Now he is on the Homeland Security Committee and almost got onto the House Ways and Means Committee, except that even Nancy Pelosi had more sense than Bush-Gonzales. Please spare me.
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