Tuesday, July 14, 2009

John Marshall's Ghost

Was it happenstance or intelligent design that landed Minnesota's freshman senator (five days on the job and counting as of yesterday) Al Franken on the Senate Judiciary Committee? Franken, once upon a time, made his living being intentionally funny, which he has not been in close to thirty years. Yet, there he was yesterday, being introduced as a member of the lineup whose task it is to probe the credentials of the Hon. Sonia Sotomayor of the United States Court of Appeal for the Second Circuit and to determine whether to present her nomination for a seat on the Supreme Court of the United States of America to the full Senate for a vote.

If there is a group of men/women assembled in one room for what ostensibly is a legitimate - and most assuredly is an important - purpose who makes my hair hurt more than the Judiciary Committee of the United States Senate, I am at a loss to think of who it might be. The only difference between yesterday's opening act at Circus Judicius Maximus and the performances we had sat through most recently - when Chief Justice Roberts and Justice Alito were put their the wringer en route to taking their seats on the Court - was that the power in the room has shifted. Whereas the Democrats were the Senatorial minority during the hearings for Roberts and Alito, it is now the Republican members of the Committee who occupy that position. It has had the practical effect of reassigning the role of "smart alecks" in the room from those with the (D) affixed to their name plate to those with the (R).

Several years ago, the story first surfaced in the national press regarding the political ambitions of Charles Barkley, including his rumored desire to be governor of his home state of Alabama. At first glance it seemed improbable that the "Round Mound of Rebound" possessed the chops to hold an elective office - even in Alabama. It is less so when one realizes that the people of Alabama not only elected Jeff Sessions to the United States Senate in 1997, they reelected him in 2003. Presumably Senator Sessions represents the best and the brightest of the candidates for elective office in Alabama, a distinction apparently as impressive as being the tallest elf at the North Pole: not tall enough to hang the star on the Christmas tree but good enough to put it near the top branch on the holly bush.

The lights are equally dim on the Democrats' side of the aisle. Senator Charles Schumer, the senior Senator from New York - who given his long and distinguished history of jumping onto bandwagons as they begin to accelerate and jumping off of them as they begin to slow down with equal alacrity - was not surprisingly reduced to tears during his introduction of Judge Sotomayor. His overblown sense of theatrics knows no bounds. Better still was the performance of the Empire State's junior Senator, Kirsten Gillibrand, who rambled on for more than ten minutes. She was interested perhaps in introducing herself to the people of the State of New York, considering she represents them as one of only one hundred United States Senators - a job for which she received not a single vote - being appointed by a Governor who received an equal number of votes for the job he presently holds.

History should teach the members of the Judiciary Committee that past performance has long proven to be an inaccurate indicator of what a man or woman shall do once a lifetime appointment (unless you are Abe Fortas) on the Supreme Court of the United States has been secured. Dwight Eisenhower nominated California Governor Earl Warren to be Chief Justice in significant part because of Warren's ability to deliver California to the Republicans in the Presidential election (a Republican whose last name is not Reagan carrying California in a Presidential election? Who knew?). Under Warren's stead, the Supreme Court handed up a series of decisions that expanded the presumed limits of individual liberties and rights, which ultimately led Eisenhower to declare that appointing Warren to the Court was the biggest mistake of his Presidency.

It bears remembering as well that the member of the Court whose retirement has opened the vacancy that Judge Sotomayor hopes to fill, Justice Souter, was nominated by a Republican President. Yet Justice Souter has consistently been characterized as being among the more liberal members of the Court during his approximately two decades of service. Methinks Senator Lindsay Graham of South Carolina hit the nail squarely on the head when he told Judge Sotomayor yesterday that, "barring a meltdown" she will be nominated. And once she is nominated, she will take her place among the nine Justices of this nation's Supreme Court.

Listening to the various members of the Committee drone on yesterday I could not help but wonder how many of them who are attorneys, other than Senator John Kyl of Arizona, are members of the Bar of the Supreme Court of the United States. I am - and have been for close to a decade. And I suspect that the Court - and the Republic - shall survive the addition of soon-to-be Justice Sotomayor just fine. Same as it ever was.

-AK

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