"Entry of the Gladiators" The U.S. Constitutional and Governmental Menagerie
October 1, 2018 | View PDF
Google defines menagerie as “a collection of wild animals kept in captivity for exhibition; a strange or diverse collection of people or things.”
And the selection of a Supreme Court justice in the Senate Judiciary Committee today has turned into one. A supposedly straightforward process provided for under the Advice and Consent Clause of the U.S. Constitution (Article II, Section 2, Clause 2) by which the president can exercise his exclusive power to appoint Supreme Court judges among many other public officials with the advice and consent of the Senate has turned into the disobliging, discourteous, and downright abominable menagerie that we see on display today. And the Founding Fathers did all that they reasonably could to avoid it, considering that they were thoughtfully balancing the concerns of finding individuals with “a systematic and accurate knowledge of the laws”, the concern for possible intrigue and corruption that exist during the selection process for such appointments, along with the very significant power and interest that the individual states had at that time. [Gauch; see below]
It is happening because the elected officials of Congress at least since 1970 have abdicated their mutual authority to make difficult decisions and in their absence has granted more of Congress’s authorities to the executive branch and the courts, much to the founders’ chagrin.
The original purpose of the Supreme Court set out by the Constitution was to establish itself and inferior courts as needed to settle “controversies” between parties, not make law. In fact, the power that Americans most associate the Supreme Court today, judicial review of laws passed by Congress, state laws, or executive orders prepared and carried out by the president, is not even explicitly written in the Constitution. It is (rightfully) inferred by the Supremacy Clause of Article IV, Clause 2.
But the fact that it was not originally and explicitly stated as an authority should not be understated. The founders wanted the Supreme Court to adjudicate, not legislate, or take broad executive actions affecting all citizens. It was never intended to become a political branch of government. The reason why Supreme Court justices are selected to lifetime appointments is precisely because they did not want the most senior judges in the land to be overly influence by political pressures. These pressures were to be felt to lessening degrees by congressional representatives, presidents, and senators. They wanted the legislative and executive branches to handle the functioning of government, and to only be forced to resort to the Supreme Court for far-reaching items of long-term national consequence when something was irreconcilably broken.
And even though the intent to depoliticize Supreme Court justice appointments got off to a rocky start as early as 1795 with the rejection of Judge John Rutledge, along with the other 28 nominees (1 in 4) that were rejected almost always along party lines in the 19th Century [Gauch], the trend seemed to become much more level-headed and congenial with only three nominees rejected for the majority of the 20th Century.
That changed considerably with the two Nixon nominees, the 1973 Roe v. Wade decision, and the rejection of the highly qualified but overtly pro-life nominee, Robert H. Bork in 1987. Afterwards, the concept of a depoliticized Supreme Court was turned completely on its head.
As a consequence, what currently transpires with the menagerie of the Judge Brett Kavanaugh hearings is a symptom of American societal discord. Regardless of Judge Kavanaugh’s innocence or guilt concerning the increasing number of highly questionable accusations for sexual misconduct thrown against him, he is not the one who has made a mockery of the advice and consent function of the Senate. In this particular case, that fault rest entirely with congressional Democrats and their sloppy and self-serving muck up of congressional due diligence and procedure. It also ultimately rests with an electorate that continues to facilitate this insanity purely to perpetuate un-altruistic goals.
This is why we select individuals of high moral and intellectual caliber to the Supreme Court, in principle without regard to political ideology, because in theory the interpretation of law should not be political. We refer to the authority of the rulings of these justices during times of conflict within the executions of laws and among the various levels and branches of government. These rulings are a repository of reasoning and thought that we use to seek clarity and understanding in moments of legal conflict or confusion. They are the repository of thoughtful debate conducted by individuals that have nothing to gain other than the healthy perpetuation of jurisprudence within the republic, whether we believe the court’s ruling as correct or not. Supreme Court ruling opinions are produced to justify their decisions and dissents are also produced to explain what disagreements exist with their decisions, and with the clarity of the progression of time, the validity of such opinions are either verified or discarded. This process is very different from the legislative and executive processes that derives their political power from the relative expediency of their decisions as well as their ability to change them as situations change. Unfortunately discord about what is actually just and right, good and evil, acceptable and unacceptable is growing increasing worse, and that void by necessity is being filled by the strained federal court system; that combined with the punishment powers that in theory rest uniquely within the judicial branch could very easily destroy this republic if we as citizens allow it. To paraphrase Sam Adams, Co-Owner of the Alabama Gazette: It is good to show our system, as flawed as it is, serving as a valuable tool to attain particular goals for the prevailing political philosophies of our nation, with the absence of wide spread protracted violence, unlike what we see in other cultures of this violent world.
We must always remember that ultimately simply passed laws or even judicial decisions do not both grant and guarantee individual freedoms in our system of government, only the Amendments of the Constitution do. We all should remember that when we argue about justice under the law, or when we vote for the representatives that make our laws in the first place.
(((As this article was going to print, this writer was referred to an article written by James Gauch regarding how the Advice and Consent Clause came into being and this writer made minor changes to his original article to accommodate the additional information. For a concise reading of how the clause came to be and how the ramifications of it affect the United States political system today, please refer to his article referenced below:
Gauch, James E. (1989) "The Intended Role of the Senate in Supreme Court Appointments," University of Chicago Law Review: Vol. 56 : Iss. 1 , Article 7. Available at: https://chicagounbound.uchicago.edu/uclrev/vol56/iss1/7)))