Sunday, April 1, 2012 | 2 a.m.
Quick, our judicial system is drowning.
Before you immediately dismiss this with the usual, “It is an April Fool’s joke,” let me assure you it is not. In fact, anything that undermines the judicial system in this country is no laughing matter.
Most Americans know that the judicial branch of government is a co-equal branch, along with the executive (the presidency) and the legislative (Congress). The Founding Fathers knew, as they did about most things, that there would be a constant tug for power between those in Congress and those in the White House, and it would be easy to run roughshod over our Constitution.
The court system, with the Supreme Court at the top, was designed to make sure that the rights of individuals remained paramount in any consideration that involved governmental intrusion, a likely outcome given that human beings were to be put in charge of the levers of government, and their natural inclination would be to exert power. The Supreme Court, of course, was designed to be a check and balance against any overreach by either executive or Congress, or both.
That is why for the first two centuries of this great experiment in representative democracy, the courts have been seen by the public as the last bastion against government abuse and the first hope for justice. We have looked to courts as the final arbiters of what is constitutional and the impartial dispensers of justice in a society that at times can be, well, unjust.
Two examples come to mind on this day of fools that give continued pause about what might happen to what has always been the people’s bulwark against government abuse of power. One is happening on the national stage and the other is happening here at home.
The first, of course, is the unusual three-day argument in front of the Supreme Court last week on the constitutionality of the Patient Protection and Affordable Care Act. That is what Congress called it when it was passed and signed into law. “Obamacare” is what those who oppose it call it, tagging the president with what appears to be a potent campaign issue. And therein lies the first problem.
I remember more than a few times when a decision by the Supreme Court was hailed and assailed at the same time, depending on people’s political views. Certainly, Roe v. Wade comes to mind. As does Brown v. Board of Education. Both cases helped determine the nation’s social and educational course. The first, of course, said that women had the right to decide what was best for them and their bodies and that government did not. The second held, almost 100 years after slavery was abolished, that separate but equal schools (one for whites and one for blacks) were separate but not equal and therefore could not stand.
Emotions ran high, and still do in some places, but there is no question that Americans accepted the Supreme Court decision as the law of the land. Whatever role politics played in those decisions, they were based on legal theory, precedent and the Constitution. And, most important, they were decided by overwhelming majorities of the court. Roe v. Wade was 7-2, and Brown v. Board was unanimous.
What has happened in recent decades, though, concerns me. Many of the most controversial decisions have been 5-4 votes (take the one that elected George Bush president over Al Gore and strained legal jurisprudence to do it). Close votes on vitally important matters add fuel to political fires that burn into the public’s mind the idea that just one vote on the court is worth all the money it takes to elect one presidential candidate over the other. If the president can make the right appointment, the theory goes, decades of precedents can be overturned on 5-4 votes.
And I submit that is not the way to instill public confidence in the Supreme Court.
That is why whichever way the high court rules in the health care law debate, I hope it is by a clear majority, at least 6-3, so that we can give lie to the idea that politics alone can control constitutional decision-making. The alternative would be a total loss of faith in the one branch of government that has always been the public’s last refuge of justice and fair play.
And, speaking of justice and fair play, what the heck can Dean Heller be thinking?
On a day when the Senate confirmed Miranda Du, the first Asian-American federal judge in Nevada, Heller refused to give his approval for the nomination of Judge Elissa Cadish for another District Court spot. He pretty much refused to state his reason for withholding his support for one of the most qualified judges in the state to step up to the federal bench. As a practical matter, the Senate likes both state’s senators to agree on whomever the president sends to the Senate for confirmation.
Perhaps it is just a momentary judgment lapse that caused Heller to say no. We all have those from time to time. Or, perhaps there is something more sinister at play. Who knows why he said no because Sen. Heller ain’t saying. That leaves plenty of room for speculation.
Some have suggested a disagreement on the extent to which government can regulate gun ownership — that would cause the NRA to have a conniption perhaps and take it out on Heller in the next election. But that is a phony argument because Judge Cadish is ranked at the top by Republicans and Democrats, many of them gun owners, for her judicial acumen and ability, which includes her ability to apply the law. She has made that clear in her recent letter to Sen. Harry Reid. For Heller to maintain some anti-gun rationale for withholding support is intellectually dishonest, at the very least.
Some might think his opposition is based on Judge Cadish’s gender. But that would be nuts. Fifty percent of voters are women. Besides, Judge Du is a woman and Heller supported her.
Some people think that Heller, a Republican, is saying no just to deny Sen. Reid, a Democrat, the ability to see his choice for federal judge take the bench. That would be the height of pettiness, something that Heller, so far, has tried to avoid.
And there are others, still, who see other, far more malicious reasons for his actions, although I don’t give them much credence.
So, what is the real reason for stopping this state from having a most qualified jurist on the federal bench at a time when our courts are so woefully short-handed and the need for swift justice has never been greater?
I really don’t know. But, maybe it has something to do with the further politicization of our courts which, in turn, is causing the public’s loss of confidence in the judiciary’s ability to dispense justice. And when that happens, there will be no reason to believe that this democracy is worth the effort.
Could it be that Heller’s ridiculous and childish position on Judge Cadish is one more step in this march toward turning the judicial into a third political branch of government rather than the defender of the Constitution the Founding Fathers intended it to be? Could Dean Heller be that conniving and un-American?
April Fools or not, nothing about what is happening to our court system is a joke. Except, maybe, the people who are helping to destroy it. I hope Dean Heller is not one of those people.
Brian Greenspun is publisher and editor of the Sun.