Archive for Saturday, April 9, 1994


April 9, 1994


No matter who is president and no matter what the makeup of Congress may be, the real and lasting power in this country rests with the Supreme Court. Those who drafted the policies to govern this country didn't plan it that way as there were to be three branches -- the executive, the legislative and the judicial -- each of which would carry out its respective responsibilities and obligations.

The judiciary was supposed to judge whether the laws of the country were being observed, not to make law. Those closest to the public would make the law in conformance with the Constitution. That was the role of the legislative branch of our government.

However, in recent years, the Supreme Court is making laws, not interpreting the law. Presidents have the responsibility of nominating those to be considered for the nation's highest judicial bench but members of the Senate Judiciary Committee really are the ones who decide who becomes a justice of the court.

And, it is within this Senate committee, in collaboration with the president, if the president and the majority of those on the Senate committee are of the same political party, that hard-ball politics takes over rather than any sound, nonpartisan review of a nominee's qualifications to serve on the Supreme Court.

More and more, it is not a case of selecting the best-qualified person to sit on the bench, but rather finding someone who shares the political philosophy of the president, someone who fills a designated "position" on the court such as a female, a minority, a person of color, a liberal, a conservative, a Jew, Catholic or Gentile.

It isn't a case of selecting someone who is acknowledged as one of the country's best judges or someone who has the best understanding of constitutional law. Rather it is becoming more a case of finding someone who will agree to carry the flag for certain philosophical causes, i.e. the gay issues, abortion, the death penalty, the environment, etc., etc., etc.

One of the best examples of this struggle to try to get the best, most knowledgeable individuals as Supreme Court justices was displayed with the nomination of Judge Robert Bork. Few disagreed that Bork is a brilliant jurist, one the most able and knowledgeable individuals when such measurements are made based on his understanding of constitutional law, and he had a fine record as a lower court judge.

The only trouble was that he was nominated by a conservative/moderate Republican, President Reagan, and liberal Democrats, headed by Sen. Joseph Biden of Delaware and aided by senators such as Kennedy of Massachusetts, controlled the Senate Judiciary Committee. Democrats were not going to approve Bush's nomination, no matter how qualified Bork may have been. He was clearly a superior jurist, but that didn't matter. He was labeled a "conservative.'' Biden, Kennedy and others wanted "a liberal," someone who would make laws to fit their political/social philosophy.

Chances are, this kind of narrow thinking will continue for years. In the process of such practices, the nation is cheated from having the best possible men and women serve on this critically important body. The court actually determines and governs how everyone in this country shall live and their degrees of freedom.

In the minds of senators such as Biden and Kennedy, it is more important to abandon the Constitution in order to court some particular group or cause.

With the announcement by Justice Blackmun that he intends to step down from the court, Clinton and those who share the president's view and role of the court as well as his political/social philosophy, have not wasted any time in doing their homework on who might be the best nominee to guarantee a specific vote on the court.

Apparently, Sen. George Mitchell of Maine is the No. 1 choice although Clinton and others are making a major effort to assure the public that many individuals are being considered. And, although the president may want the public to think he has not known about Blackmun's retirement plans until fairly recently, knowledgeable individuals suggest Blackmun told the president of this plans near the first of the year, maybe four months ago.

Others suggest Clinton may have passed this information along to Mitchell who then announced his plans to retire from his powerful Senate leadership position, knowing he might be in line for the Supreme Court job.

Much homework is said to have been under way during the last few months, trying to find out if it is legal to nominate and name a sitting member of the Senate and if there are conflicts with the Constitution's "emoluments clause" if Mitchell were to be nominated.

It appears senior presidential adviser and fixer Lloyd Cutler has figured out a way to clear Mitchell's nomination and unless pressure for a Hispanic nominee, or some other group becomes so intense, the senator from Maine is likely to don the robes of a Supreme Court justice.

He fits the president's qualifications: Mitchell has a "presidential support" score of 94 percent; he was judged to have voted "liberal" 89 percent of the time on social issues; the National Journal claims he had "zero" conservative votes and he can play his role as a "politician" on the court rather than distinguishing himself as a truly outstanding jurist.

Unfortunately, it appears raw politics, playing to the voters and pressure groups, is becoming more prevalent on the Supreme Court. All of us, no matter our political persuasion or social philosophy, the color of our skin or our religion, will suffer the longer this kind of thinking determines who will serve as a Supreme Court justice.

Considering the power of the court and the role some want it to play, this is not an encouraging outlook for the country and its citizens.

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