The contrast between two high court judicial confirmations this month, one in Washington and the other in Augusta, has dramatized the need to make the judicial appointment process a quest for excellence instead of a political blood-sport.
After a bitterly contentious confirmation process, the U.S. Senate on April 7, by a narrow 53-47 vote, approved the nomination of Ketanji Brown Jackson to become the first Black woman elevated to the United States Supreme Court in its 232-year history.
Rearview Mirror
Five days later, on April 12, the Maine Senate voted unanimously to approve Judge Rick E. Lawrence’s nomination to the state Supreme Court, making him first African-American justice in the court’s 202-year history.
Both jurists were eminently well qualified, highly respected and possessed of that indispensable personality trait known as “judicial temperament.” And both appointments represented a long overdue stride towards the elusive goal of achieving racial equality in American society.
Yet the Maine Senate appropriately worked its way through Judge Lawrence’s confirmation process in a dignified, nonpartisan way, while the U.S. Senate reached the same end result for Judge Jackson only after the GOP had staged a carnival sideshow of political posturing, procedural maneuvering and factual distortion.
Despite all evidence to the contrary, Senate Republicans tried to place Jackson on the wrong side of culture-war issues they’ve been exploiting to catapult their party to power, labeling her, for instance, as “soft on crime.” Only three Republicans (including Maine’s Susan Collins) broke ranks to vote for Jackson. Then, in a deliberate show of disrespect after the final vote tally, most GOP members departed the Senate chamber without even affording Jackson the traditional courtesy of applauding her confirmation.
Decades of relentless effort by both Republicans and Democrats at the national level to secure the appointment of judges whose rulings could advance their political agendas have already had a corrosive effect on public trust in the judiciary’s fairness and integrity. And if either party were to ultimately succeed, it would destroy the very purpose of the institution.
A judge’s primary job is to intelligently and dispassionately “interpret” the law rather than to “legislate” it based on their own personal or political preferences. Regardless of whether they are “liberal” or “conservative” in their jurisprudential philosophy, justices must parse the meaning of provisions contained in the Constitution and legislative enactments (as well as in administrative regulations and treaties).
To do this, they treat the language of existing laws as their lodestar, assigning to words, whenever possible, their plain, every-day meaning. If the meaning is hopelessly murky, vague, ambiguous or internally inconsistent, judges look to other relevant constitutional provisions or statutes to establish interpretive context. If that fails to provide clarity, as a last resort they consult the history of a law’s creation in order to get at the intent of those who originally drafted and enacted it.
The major difference between the “conservative” and “liberal” justices is their approach towards the last step, the analysis of a law’s history. Conservatives are “originalists” or “textualists” who try to ascertain and rigidly adhere to the thought process of those who drafted or enacted the law. Liberals attribute more importance to the creators’ broader goals and, after taking into account the societal changes that have transpired since the words were written, try to apply them to a modern setting. Liberals are also less inclined to overturn “precedent,” the holdings of previously decided cases, in order to reach back to original textual meaning. Neither approach encourages sweeping policy creation of a legislative nature.
From time to time in its history, the U.S. Supreme Court has veered out of its lane and articulated public policy not anchored in the language of the Constitution, often with unfortunate consequences. The Dred Scott case (1857), which declared that Blacks slaves were mere property without legal rights, led to the Civil War. In Plessy v. Ferguson (1896), the Court held that state laws requiring separation of the races in public accommodations did not violate the Equal Protection clause, thereby entrenching Jim Crow segregation for another 68 years.
In Roe v. Wade, decided in 1973, the Court ruled that women had a constitutional privacy right to abort an early pregnancy. While recognizing that the “Constitution does not explicitly mention any right of privacy,” the majority in Roe purported to find an implied right of privacy in the 14th Amendment’s “concept of personal liberty and restrictions upon state action” and the Ninth Amendment’s “reservation of rights to the people.”
Roe may have represented sound public policy, but it stretched the Constitution’s meaning to its elastic limit. Given the Constitution’s silence on abortion, as well as the socially divisive and morally complex nature of the issue, the Court came perilously close to legislating rather than interpreting. As a result, the case fueled the culture wars which have bedeviled our politics for the past half century.
Ever since Roe, social conservatives have relentlessly pressed to get originalist justices appointed to the bench in an effort to overturn the holding. Jackson, with her deference to precedent, didn’t fit that mold. Nor could she be counted on to advance the Republican agenda on other hot-button issues such as the validity of voter suppression laws.
Still, it was clear from the outset that Senate Democrats had the votes to confirm Judge Jackson even in the absence of GOP support, so Republicans decided instead to turn her into a convenient prop for their “let’s show the base just how angry we are” show.
In staging that show, however, Republicans gave Americans yet another reason to mistrust the judiciary, an institution indispensable to the preservation of our democracy.
Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 16 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at epsteinel@yahoo.com
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