Here Comes the Judge -- Beyond Roe v. Wade

by Larry Beinhart

The first question to ask the new nominee to the Supreme Court is: "Will you be an honest judge?"
This is not a question that is normally asked, straight up, to a Supreme Court nominee. But we are asking about something a little more subtle than "would you take a bribe to throw a case?"

In the year 2000 the Supreme Court of the United States stopped the recount of the Florida vote and threw the election to George Bush. This is old news. But judging from the Roberts' hearings and the punditry, the issues have been forgotten. They've faded into the fog.

Ignoring the fact that the man with fewer votes got to be president, what is most notable about the decision was that Scalia, Thomas, Kennedy, Rehnquist and Sandra Day O'Conner did not vote according to what they believed the law to be. They voted for Bush because they wanted a Republican president.

We can say that because they have a track record and their votes in Bush v. Gore went against their own established principles. If Gore had been ahead and he asked them to stop the recount, on the very same grounds, it is a virtual certainty that those same five judges would have voted the other way.

The justices violated a judicial principle that is even more profound and runs even deeper than the Constitution itself, that the law will be applied fairly.

Scalia, Thomas, Kennedy, Rehnquist and O'Connor stopped the recount on the grounds that because different counties would use different standards it would violate equal protection.

But that was already true of the original voting. Machines were different, their maintenance levels were different, the way they were set was different, and ballot designs were different. How could a recount -- a closer examination of flaws -- increase the inequality of protection?

To stop something, the court has to find that there will be harm in letting it go forward. That harm has to be greater than any harm created by stopping the procedure. Preferably, the harm should be otherwise irreparable. In this case the court held that Bush would be harmed because the recount would cast doubt on the legitimacy of his election.

Huh?

Presuming he would have still won after the votes were recounted, that would make the vote seem doubly legitimate, not cast doubts on it. If the recount showed that he lost, surely the harm done to Al Gore, to the voters of Florida, and to the people of the United States -- to be governed by a man who lost the election -- would be greater harm than the doubts that exist anyway about George Bush's election.

It was a laughable decision on the face of it.

But that's not what is important in judging the justices. What is important is that these five had always interpreted the equal protection amendment as narrowly as possible. They were also on record as favoring the power of the individual states rather than extending the power of the federal government. This was a reversal of that stance as well.

As to their attitude about harm, these were justices who had refused to stay the executions of prisoners who had cases on appeal, who were then put to death before their cases could be heard. These are judges who did not consider death a harm irreparable enough to issue a stay.

This was not a situation in which they suddenly woke up and changed judicial philosophies, which might be legitimate. They were changing just for this decision and they intended to change back and they even said the decision was, "limited to the present circumstances ..."

The question to ask the new nominee is if he would give a liberal Democrat equal justice to a conservative Republican?

He will automatically say, "Of course."

The next question is, "The other conservative Republican appointees put party interests ahead of principle, how are you different than they are? Tell us how we are to know that you are better than Scalia?"

This is a very different question than "How will you vote on Roe v. Wade?" A fair portion of the American people -- and possibly even a Republican Senator -- might think fair justice and justice with integrity is more important than any single issue.

The next question is, "Do you believe that the Constitution applies to everyone?"

We now have a class of people -- anyone who is named as an "enemy combatant" or a terrorist -- who can be picked up, carted away, kept in confinement and tortured. They have no right to attorney or to face their accuser or to be a trial. This is fairly extreme given that the constitution says:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury ..."
"... nor be deprived of life, liberty, or property, without due process of law ..."

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."


After that, we should ask, "Do you believe that everyone is equal before the law or are there people above the law?"
There is a reason this has to be asked. When this administration decided they wanted to torture people they understood that torture is a crime. It is a common crime and it is a crime in a state of war, both in international law and according to the United States code, specifically sections 2340 and 2340A.

Jay Bybee, when he was at the White House with Alberto Gonzales and John Yoo, came up with the theory that when the president is wearing his commander-in-chief outfit, he is above the law. The law against torture doesn't apply to him because it would interfere with his "constitutional power to conduct a military campaign." If anyone committed a war crime under his orders, they too would be protected.

We figure that none of us would ever be called a terrorist or an "enemy combatant" and be stripped of our rights. We're too respectable. We assume that the president would never have one of us, personally, tortured, as he is too respectable. So we don't feel immediately threatened. But there is no technical difference between the way Jose Padilla was treated and the way you and I could be treated tomorrow.

Unless we remember that we had a revolution so that we would not have a king. Then we established a democracy. We wrote a constitution. We put in certain guarantees. We declared ourselves to be a nation of laws. In which no man was above the law. Or beneath it.

It is fair to ask if any judicial nominee understands that and agrees with it.