In the Supreme Court, Has It Become Politics Over Law?

In the recent Supreme Court hearing of arguments for and against Tump's claim of absolute immunity from prosecution ("4 Takeaways," April 25), three of the conservative judges - Alito, Gorsuch, and Kavenaugh - put forth questions/arguments which were almost ludicrous in their lack of relevance to the issue at hand.

These three conservative judges basically said that a president should not be subject to politically motivated prosecution by a vindictive successor.  We can all agree with that.  But this argument is not relevant to judging Trump's claim to immunity.  The fact that in rare instances a criminal statute could be misused is no reason not to provide for prosecution of the crime.

First, the question is whether a past-president should be immune from prosecution from potentially criminal acts committed while in office.  The further question is whether this should apply to both official and non-official acts, or just non-official acts.  

Prosecution for criminal action has various bars that must be met to justify prosecution.  Regardless how zealous the prosecutor or vindictive the successor, there has to be alleged criminal action.  This is not about challenging a president's motives for his official acts in office, regardless how criticized he or she may be.  Supporting particular legislation or arguing for a change in regulation, regardless of the motive, would not constitute criminal action under anyone's definition.

Which brings me to the second point.  All the conservative justices refused to look at the facts involved in this case.  Yet in judging whether a claim of immunity is appropriate, the facts of the case are extremely relevant.  You have first the theoretical question of absolute immunity, and once that is decided, whether the case before the court warrants such immunity. Trump is alleged to have defrauded the government by denying the results of the election – not by challenging them in court which is his right and which he did – but continuing to contest them after losing the court cases and further by attempting through various means to subvert the election and remain in the Presidency.

These facts are relevant because they show why the grant of immunity requested is not appropriate, why such matters must be subject to criminal prosecution.  They go to the heart of the strength and validity of our democracy.

Why Judge Kavanaugh Is Not Qualified to Sit on the Supreme Court

There is no question that Judge Kavanaugh has all the paper credentials one could ask for.  His education and years on the bench clearly make him qualified in that sense for his appointment.

However he is not qualified in terms of the judicial temperament requisite of a judge, especially a justice of the Supreme Court.  The essence of justice, as embodied by the classic symbol of the blindfolded statue of justice holding the scales, is that a judge will decide a case on its merits, free of any bias regarding the particular matter before him.  Will he thus vote with the “liberals” on the court some times and other times with the “conservatives,” depending on the merits of the case?

One way of looking at this question is whether the judge will respect precedent, an extremely important element of judicial stability and impartiality.  Or will he be more of a political judge than a judicial judge?  

In discussing this issue, I certainly am aware that all justices come to the bench with their particular views of the appropriate role of government.  That is inescapable.  And it is true of both the “liberal” and the “conservative” justices.  But within that framework, a judge must be able to decide a case based on its merits, not on some foreordained, ideological view of the world.

From his opinions, it is clear that he, like some of the other current “conservative” justices on the Supreme Court, is not a conservative of the old school.  He does not respect precedent if he disagrees with it and is extremely biased as to how the law should be applied to a case.  

In short, regardless of the facts, he is against government/court intrusion into business matters and the executive branch while he is in favor of government/court intrusion into the lives of individual citizens to enforce his view of morality.  The facts of the case are irrelevant; he is social conservative and ideologically strict.

The justice he replaces, Justice Kennedy, was on the other hand definitely a conservative of the old school.  He was against government/court intrusion whether it was against business interests and executive power or in the private lives of individual citizens.  Thus Justice Kennedy could both vote recently in favor of American Express and Trump’s travel ban but be the lead justice in the decisions to decriminalize homosexuality and approve gay marriage.

The focus of the confirmation hearing should be on Judge Kavanaugh’s judicial temperament, not how well he is respected and his solid paper credentials.  The fact that there are some other justices currently on the Court who do not have the requisite temperament is irrelevant.  Better late than never.

Choosing the Next Supreme Court Justice - An Open Letter to President Trump

With the resignation of Justice Kennedy, a momentous task has befallen you.  How you proceed with selecting the next Supreme Court justice will have an immeasurable impact on the country and your fellow citizens for decades.

Justice Kennedy was a conservative justice of the old school.  He believed in limiting the intrusion of the government/courts whether it be in business matters or the lives of individual citizens.  Thus while he just voted in favor of American Express and in support of your travel ban, he was the lead justice in the decisions that decriminalized homosexuality and that recognized the equal right of gays and lesbians to marry.

The other four conservative justices are instead conservative politically, not judicially.  Meaning, while they are against government/court intrusion into business and the executive branch, they favor government/court intrusion to enforce their version of morality on individuals, especially on matters relating to the LGBT community and the right of a woman to choose.

You have two choices.  You can either please your socially conservative base and appoint a justice that is not true to Justice Kennedy’s legacy.  Or you can appoint a justice that is a conservative in the mold of Justice Kennedy.

What is at issue here is a basic principle of our Constitution and democracy.  In life, competing rights often run up against each other.  When the exercise of one’s rights either harms another or impinges on their rights, then that is not allowed.  That’s the basis for our criminal law and all government regulation.

In the case of LGBT matters, you have on the one hand people who have very strong religious convictions that homosexuality is immoral and a sin.  On the other hand you have gays and lesbians who are just trying to live their lives like everyone else … working, marrying, having children.  As Shakespeare put it, “If you prick us, do we not bleed?”  They are engaged in what the Declaration of Independence terms, “life, liberty, and the pursuit of happiness.”

No private person should ever be forced to do something that violates their religious conviction.  However, when a private person provides a service to the general public, whether it be as a doctor, a pharmacist, an employer, or a baker, they are no longer acting as a private person.  They are providing public services that must be provided to all citizens equally, without discrimination or bias.  

This in no way prevents them from holding their beliefs, but if they step out of the private zone and into providing a public service they cannot act towards others based on that conviction. That would impinge on the others’ right to receive services free of discrimination.

Let me illustrate this point with an extreme example.  If it were someone’s religious conviction that Jews were Christ-killers and thus hated Jews, or if someone’s religious conviction was that Blacks were inferior people, not made in God’s image, and so could be oppressed, would the Court ever say that someone’s religious conviction overrode a Jewish person’s or a Black’s right to be free of discrimination?  Of course not.  And it’s not just because the law now specifically provides those rights.  It’s because those rights are inherent in our Constitution, the Declaration of Independence, our democracy.

In the case of a woman’s right to choose, there are likewise those who have strong religious convictions regarding ending the life of a fetus and even against contraception.  On the other side, you have women who for a variety of reasons, personal or medical, either do not want to become pregnant or have a fetus mature into a child and be born in detriment to their own health and wellbeing.

Here again, you have the distinction between the private person and one who provides a service to the public.  A pharmacist, an employer, a clinic cannot deny women access to the products or information they need to make a decision and implement it.  

But this argument also has its limits.  To clarify the point about competing rights, here is an extreme example: you could not force a doctor to perform an abortion because in that case you would be forcing him to actually do something that violates his principles, as opposed to providing information regarding something or a product that is against his principles.

Your role as President is to be President of all the people, to protect all the people, to insure that all people are treated fairly and equally.  There is no question that there are some people and organizations that are down-right anti-religious.  But that is their free speech right, except in the provision of a public service.  And that is no excuse for depriving the Supreme Court of the political neutrality that is essential in its role of interpreting our laws and enforcing the Constitution.  The health of our democracy and the wellbeing of our citizens depends on it.

When Is Justice Not Justice?

For the last few decades, certainly since President Reagan’s nomination of Robert Bork, the nomination and confirmation process of Supreme Court and lower Federal court justices has been political theater.  It was not always so.  

Chief Justice Roberts stated in a recent talk reported in The New York Times that earlier in the 20th century “The Court was not regarded as such a partisan football.  A lot of nominations of this time were Republican presidents appointing Democrats and vice versa.  The Court wasn’t regarded as a place where partisan matters would be worked out.”  

And so it should be.  Not that partisan matters shouldn’t come before or be considered by the Supreme Court.  But they shouldn’t be decided on a partisan basis.  The only proper question is whether or not they violate the Constitution, and that should be a strictly legal question, not a partisan one.

In front of many courthouses there is a statue of Justice, a blind-folded woman holding the scales of justice.  Since the 15th century, she has been blind-folded because of the belief that to be “justice,” a decision must be without regard to who is being judged or who the victim or other party is.  Justice must be impartial.

But what does that mean?  Is it just a matter of it making no difference, for example, if someone is rich and powerful as opposed to poor and weak?  Or whether someone is black or white?   

Not quite.  It must go deeper because for that to truly occur it means that justice must be blind in the sense that those meting it out must be blind to their biases, their attitudes … everything but the facts.  That is the essence.  Political and personal attitudes must be left at the door.  Only then can a judicial decision truly be made without regard to who the parties are; only then is justice impartial.

For example, in a case which pits corporate rights against the individual, being pro-business should not impact the decision.  In a case involving abortion-rights opponents against women’s choice proponents, siding with one side or the other emotionally or intellectually should not impact the decision.  The same is true for any case that pits parties on opposite sides of an ideological divide against each other.

The reader may respond that what I’m suggesting, nay demanding, is not possible.  It is indeed difficult for someone to put aside their biases and attitudes when they have the opportunity to further them.  But when one is a judge, I believe one must.  Otherwise, the justice handed down is not impartial.  And if it’s not impartial, it’s not just flawed, it isn’t justice.

It is in the legislative branch of government where biases and attitudes have a legitimate role.  We live in a representative democracy and representatives should as a general rule speak on behalf of their constituents, which means representing their biases and attitudes.  Yes, representatives are supposed to act in the best interest of the country (or state or city), but what that “best interest” is interpreted to be is inseparable from biases and attitudes.  It’s the nature of the beast.  And majority rules.

But the judicial branch is another matter.  Its role is to objectively interpret the meaning of laws, apply laws to individual cases, and decide if laws violate the Constitution.   Objectivity requires impartiality … both as to who the parties are and what they stand for, as well as in the law’s interpretation.  If the law is unclear as written, judges can look to the history of legislation or the history of the Constitution to decide how to interpret it, but not to their own political and social (as opposed to legal) biases and attitudes.  They are always interpreting, not rewriting, the law.

The Supreme Court is often criticized by Conservatives for what they term “judicial activism,”  which they claim is rewriting the Constitution.  Funny, though, that phrase is used by the Right exclusively when criticizing a liberal decision by the Court.  When the Court does the same but leans to a conservative interpretation, that term is not applied.  

But the term “judicial activism” as criticism is bogus.  Legitimate activism is inherent when interpreting the Constitution.  It was written in the 18th century.  The founders had their philosophies and attitudes, revealed in the basic principles stated in the document, especially the Bill of Rights, but they knew they could not foresee how society and enterprise would be transformed over the centuries.  They wrote a document for the ages, and that necessarily requires that broad concepts be applied to situations never envisioned.

As an aside, I want to make clear my view that there are both liberal and conservative elements in the Constitution’s language.  The creation of this country and its founding documents was a working out of the tension between these two views of government.  The result was a grand compromise.  The Constitution may be a profoundly liberal document overall, but it has its conservative aspects.  There is no denying that.

Often when dealing with the Constitution, looking at the language and contemporary documents while helpful still leaves the question open of how it should be applied to modern circumstance.  To answer this question, the Court has taken cognizance of society’s current attitudes - sometimes explicitly, sometimes not - in determining its proper application.  This is quite different from justices interjecting  their own attitudes and biases.  Referring to contemporary societal attitudes is more like asking what the founders would say in the current context.  This process does not disturb impartiality.

Let’s take two famous cases of activism as examples.  In Brown v Board of Education, the Court overturned its earlier decisions that separate education was equal and declared that separate education was inherently unequal.  What brought about this changed interpretation?  

When Plessy v Ferguson was decided in 1896 and supported state-sponsored segregation (in this case of railroad cars), society was not ready for integration.  The Court, applying contemporary standards, stated that the 14th Amendment “could not have been intended to enforce social, as distinguished from political, equality or a commingling of the two races unsatisfactory to either.”  

And so they interpreted “equal protection of the law” quite narrowly and upheld the stated intent of Louisiana’s segregation statute as providing equal but separate accommodations. The Supreme Court, always wary of being too far in front of public opinion, conscious that they are not a legislative body, prefers to step lightly.

But the world and our society was at a different place in 1954 when Brown was decided.  Blacks were generations removed from being former slaves.  They were a part of society in a way that they weren’t in 1896.  While the South was still not ready for integration, the rest of the country had moved forward.  

And so the Court struck down segregation as being inherently unequal.  It wasn’t just a question of how much money was spent or the quality of education.  The very concept of the government separating the races in providing education flew in the face of the 14th Amendment’s guarantee of equal protection of the laws.

The point I’m making is that because society had changed, the interpretation of the meaning of the Constitution required a change.  The Court may in fact have been more liberal in 1954 than in 1896, but looking at the case objectively, they came to the correct decision.

Many people, especially in the South, were outraged at the decision and felt that their State’s rights had been trampled.  This decision was perhaps the first decision where the Court was viewed by many as stepping into the partisan arena, the issue of race clearly being a highly charged social issue.

But it is the task of the Supreme Court to decide whether a Federal or state law violates the Constitution.  The fact that it happens to involve a highly charged area of social, as opposed to political, life does not remove it from the jurisdiction of the Court.  Society had changed in the intervening six decades since Plessy and so the Court in Brown properly came to its decision.

The other case I would cite is Citizens United v FEC, the case that declared that corporations are “people” to whom the 1st Amendment of the Constitution applies.  Thus their, and other organizations such as labor unions, right of free speech meant that they couldn’t be prohibited from spending money to influence elections through “independent” advertising in the 90-day period preceding an election.  

There was no legal precedent nor contemporary documentation to support the decision that the right of free speech applies not just to individuals but to organizations.  Nor was this a question of society having changed in a way which required a change in interpretation.  Corporations had not become weak entities that needed free speech to protect themselves.

And mind you, the law that was struck down did not say that corporations couldn’t spend any money on issue ads; it just said that in the 90-day period prior to an election they couldn’t run ads that mentioned a candidate.  There was a rational fear that a deluge of corporate money into advertising during the period could easily tilt an election.  Corporations and organizations, after all, do not have the right to vote, and so they should not have the right to unduly influence elections.  

But the Court now had a distinctly Conservative majority on issues pertaining to business.   They said that free speech was so important to our democracy that corporations should have that Constitutional right, regardless the lack of precedent, and so they struck down the law.  

This was a clear instance of the justices substituting their political judgment for that of Congress and also rewriting the Constitution.  This was the opposite of impartial justice. This was judicial activism that deserved to be criticized.

The American Bar Association Model Code of Judicial Conduct states in Canon 2.4 (b) that, “A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.”  That’s close to what I’m saying in this post although I think that “interests” is more narrow, more circumscribed, than “attitudes and biases.”  

The actual Federal Code of Judicial Conduct, however, is unfortunately less helpful on this point; it also doesn’t apply to the Supreme Court.  It states that, “A judge … should not be swayed by partisan interests, public clamor, or fear of criticism.”  It further states that a judge should disqualify himself when he “has a personal bias or prejudice concerning a party.”  Advisory opinions regarding the Code all seem to deal with external evidence of perceived partiality … connections to groups or individuals … rather than actual partiality of a judge.

But if a judge’s membership in an association that takes public positions on controversial topics would raise questions regarding his impartiality, then it follows that his private biases and attitudes on such matters should not be brought to bear on a case because it would disturb his impartiality.  I would urge that the point be stated unambiguously in all Codes of Judicial Conduct that judges must not apply their personal or political biases and attitudes to the cases before them.  Only then will impartial justice truly prevail.

Finally, I come back to the initial point I made in this post regarding the selection of judges.  If we want our judges to judge impartially, then how they are selected is of utmost importance.  Judges should be appointed for their neutrality, for their objectivity, not for their record of either being liberal or conservative.   

There are existing models for this.  At the state level, many judges are now appointed by non-partisan commissions using a merit selection plan.  Observers have long argued that this should be true for all state judges.

I would argue this should be true for all judges, regardless whether state or Federal.  A list of several candidates should be selected by non-partisan commissions, with the actual appointment then being made by the President/Governor.

The idea behind lifetime appointments for Federal judges was to remove them from the pressure of politics, which in one sense it certainly has.  But it hasn’t removed politics from the judicial process.  If a judge takes his political leanings with him on to the bench, he or she will apply political as well as personal biases and attitudes in rendering decisions, making them examples of partiality, not impartiality.  Both the way judges are selected and the Codes of Judicial Conduct must be changed.