Category Justice

The Constitution for grown-ups

Pat Ryan Leave a comment

As we prepare to pay scant attention to another confirmation hearing for a nominee to the Supreme Court of the United States, consider:

When David Souter was nominated to the court by President Bush (the first one…the good one) in 1990 he was little known in political circles outside of New Hampshire, but he had been a judge in trial and appellate courts in that state.  His nomination was opposed by NOW, the NAACP, and senators Ted Kennedy and John Kerry (among others) because they feared he was a right-wing ideologue.  By the time he retired in 2009—actually, long before that—conservatives blasted him for being a liberal, which many conservatives define as “one who does not believe as I do.”

David Souter’s judicial philosophy didn’t change in those years but the way we look at politics did; he left the court the same principled, thoughtful man who joined it a generation before.  So it’s worth considering what he had to say to Harvard graduates last month about the law and the role of judges in the American legal system.

The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Slate’s Dahlia Lithwick notes that some cheered what they saw as Souter’s disagreement with the judicial theories of some of his former court colleagues, but she finds what I think is a more valuable avenue to explore:

He wasn’t just using the opportunity to debunk what he called the "fair-reading model" of constitutional interpretation (which is quite different, although related, to the originalist approach).  And he wasn’t just using the speech to argue for evolving moral standards in judging, although he did that, too.  It seems to me that Souter’s decision to avoid all the hot-button words signals a much bigger project: He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.

Souter makes the point that the Constitution’s words are not always plain and clear, and are not without internal contradiction, and so the requirements for being a judge (particularly an appellate judge, a Supreme Court justice) go beyond high scores in reading comprehension.  He’s telling us, as Lithwick puts it, that we must recognize “ in Justice Oliver Wendell Holmes’ formulation, that ‘certainty generally is illusion and repose is not our destiny.’  He is telling us to stop dreaming of oracular judges with perfect answers to simple constitutional questions. He is telling us, in other words, to grow up.”

We shall see what Elena Kagan chooses to share about her philosophy of judging and the law.  Doug Kendall and Jim Ryan (no relation) hope that Kagan treats us as grown ups, and

…would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it.  If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

They make a point on this issue that many overlook: it’s not just the original Constitution that justices must consider:

The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since.  This view is absurd…

Recognizing that both sides have been creative in their interpretation of the Constitution over the years, Kendall and Ryan urge Kagan (and everyone left of the political right) not to forego a fight with the right over fear of being branded hypocritical, but to defend the Constitution:

To be sure, the Constitution, properly interpreted, will not provide support for all liberal causes and nothing but liberal causes.  But it doesn’t provide support solely for right-wing fantasies, either, and Obama’s nominees to the court should make that clear.  The peddling of a selectively edited Constitution as patriotic and principled should be shown for what it is: a disgrace to our real Constitution.

Don’t believe me? Listen to the faithful

Pat Ryan Leave a comment

Not to harp on this, but read today’s Maureen Dowd column: after a pointed observation about how the Roman Catholic Church treats its female members, her religiously devout and politically conservative brother eloquently makes the point I was trudging toward a few days ago (“Desperation in a brown cassock,” 4/2/2010):

The church is dying from a thousand cuts. Its cover-up has cost a fortune and been a betrayal worthy of Judas. The money spent came from social programs, Catholic schools and the poor. This should be a sin that cries to heaven for vengeance.

(snip)

The storm within the church strikes at what every Catholic fears most. We take our religion on faith. How can we maintain that faith when our leaders are unworthy of it?

Desperation in a brown cassock

Pat Ryan Leave a comment

Please cue Mr. Welch: Have you no sense of decency, Father, at long last?  Have you left no sense of decency?

I was saying “no no no no” to myself by the time I finished the lead of today’s story—at long last, Roman Catholic Church, have you no shame?  You can’t save yourself by claiming that the worldwide criticism you’re experiencing now is comparable to anti-Semitism; sorry, Rome, but it just won’t wash.

Jews were, and are, persecuted for being Jews; not for anything they did, but for who they are.

You are being “persecuted” for something you did, and are still doing: choosing not to take action—timely and appropriate action—to stop members of your organization—your employees—from committing crimes against children who weren’t capable of defending themselves.

Before this ends, you’re going to have to acknowledge that the priests who committed these acts are criminals, and the people who protected the organization at the expense of helpless children were wrong, and they need to be punished.

Even the most devout members of your club can see this defense as a pathetic tactic; keep it up and they’ll abandon you, and you’ll deserve it.

more truth, more free

Pat Ryan Leave a comment

Who knew—now I can’t open a Web page without seeing something new on the topic of trying terrorists.

First, an opinion piece arguing, among other things, that the families of September 11 victims would benefit emotionally from seeing Khalid Sheik Mohammed brought to justice at the site of the crime…an interesting perspective.

And then, who but Ben Sargent, one of my all-time favorite skewerers of fatuousness editorial cartoonists, should offer a thought:

…and the truth shall set you free

Pat Ryan Leave a comment

I’ve wondered why some people object to putting accused terrorists on trial in civilian courts; today, Houston attorney and Navy veteran Patrick McCann wonders the same thing and offers a thoughtful position on the value of such trials.

My default belief?  People who hijack planes and set off bombs are committing crimes, particularly if they aren’t wearing the uniform of a country that’s declared war on us when they do it.  So why wouldn’t we try them in civilian court?  McCann notes that we, in fact, have, without the courtroom becoming the target of another attack:

the sky does not actually fall when trials occur, even trials of, say, Zacarias Moussaoui, the so-called 20th 9/11 hijacker, who now rots in prison. Or that of the original shoe bomber Richard Reid, who is also in prison. Or that of Omar Abdel Rahman, known as the “blind sheikh,” who first tried to blow up the World Trade Center in 1993. Remember him? Well, if you don’t, it is probably because he was tried and sentenced to life in prison in the federal district court of New York. He now is living out his days at the “supermax” prison in Colorado. By the way, Timothy McVeigh, a man who tragically succeeded in blowing up innocent people, was also tried and executed in the federal court system.

As for the worry that an Al Qaeda defendant would use the public trial to condemn us, and tout his beliefs: as they say, bring it on.

The battleground of ideas is not fought by weapons of propaganda but by truth. There can be no simpler, greater truth than to place men such as the most recent tool of these fanatics on public trial, broadcast for the world. Let him spout an ideology that requires the murder of fellow Muslims, the enslavement of women and the use of suicide bombers to carry the word of God. Let him do so in a public court, where the record is tested by his lawyers and where the truth emerges in front of 12 citizens and the rest of the world. Let him try and twist the truth, as he certainly will, because he will fail. Let every person across the globe see the difference between the vision of the power-mad old men who command the vulnerable to slaughter in God’s name and the reality of life and liberty in a place that treats even these fools with decency.

(snip)

There is no simpler way to reveal these people for what they truly are, and no better way to show the world who we are. That is how the battle gets won, not by hysterical fear of a trial, nor by making these men out to be somehow too powerful for our system to deal with. They are not. It actually helps them to think our politicians and pundits are pandering to panic and fear when they read that they are too dangerous to hold in the United States. They do not deserve such mythic status, and our cowering pundits and public figures should not give it to them.

Today the attorney general said he decided a civilian court was good enough for the underwear bomber, and got no objection from military or intelligence (insert your own joke here).  A good sign, I think.