Supreme Discomfort

By Isiah Smith, Jr. | Sept. 29, 2018

Ostersund, Sweden — On May 28, 1788, in Federalist 78, Alexander Hamilton wrote that the judiciary is the least dangerous branch of government. Judges under the Constitution, he wrote would possess “neither force nor will but merely judgment.” 

Add these views to the long list of things Hamilton got wrong. As Ron Chernow recounted in his massive biography, “Alexander Hamilton,” it is right up there with his decision to enter a duel with angry, sharpshooter Aaron Burr, vowing to “throw away my shot.”

If the judiciary were as harmless as Hamilton thought, Democrats and Republicans would not have turned judicial nominations into an unseemly blood sport where to the victors goes the spoils.  Whenever a vacancy appears in the federal judiciary —especially the Supreme Court — presidents and members of Congress practically hyperventilate at their opportunity to shape the nation’s legal landscape for generations to come.

They know that it’s their chance to stuff the courts with judges who will create laws in the image of whoever is in power.

That the Supreme Court wields great power is evidenced in the injustice perpetrated against the rule of law following the February 2016 death of Justice Scalia.  President Obama quickly nominated Merrick Garland, a moderate, to fill Scalia’s seat. The Republicans simply ignored that nomination, vowing that President Obama had no right to exercise his constitutional mandate.

It is a president’s constitutional right to nominate a Supreme Court justice. However, the party in power held out the (then) faint hope that a conservative president would replace Obama and nominate someone who saw the world as they did. 

In 1803, Marbury v. Madison established the principle of judicial review, meaning American courts have the power to strike down laws, statutes, and executive orders they feel violate the U.S. Constitution.

Since Marbury, an often unconstrained Supreme Court has constrained the rights of the American people by deciding, among other thing: 1) A black man has no rights that a white man is bound to respect (Dred Scott v. Sanford, 1857); 2) Blacks could be constitutionally forced to sit in railroad cars separate from whites (Plessy v. Ferguson, 1896); and, 3) the president possessed the power to order all Japanese Americans into internment camps during World War II, regardless of their citizenship (Korematsu v. U.S, 1944).

Clearly as these representative examples of judicial cruelty illustrate, ordinary citizens can scarcely rely solely on the judiciary to protect their rights. Supreme Court justices have too often been agents of oppression, deceit, and legal cruelty.  Too often they have issued decisions that reinforce and reflect the worst tendencies of the president who nominated them.

Given all we have learned since January 20, 2017 about the man who nominated Kavanaugh to the Supreme Court, what kind of judge do you think Kavanaugh will be?   

What do we know already about Kavanaugh? Well, we know that he accumulated an incredible amount of debt that he attributed to the purchase of baseball tickets(!).  His explanation seems exaggerated at best, if not outright false.

Suspicious financial transactions justified by statements that may or may not be true. Hmmm, haven’t we seen this play before?

During his confirmation hearings for the D.C. Circuit in 2004, Kavanaugh claimed that, while he served as a White House aide under President Bush, he was “not involved in the handling of President Bush’s nomination of Judge William Pryor to the Federal Appeals Court. 

Newly released emails from 2002 and 2003, however, show Kavanaugh discussing the vetting process for Pryor with his fellow White House aides. So apparently, this Supreme Court nominee has lied under oath at least once.  

These are not isolated incidents of the nominee making inaccurate and untrue statements. There are more, but these should suffice to give us a glimpse into this man’s character and his trustworthiness (or lack thereof).  Additionally, there are the charges that Kavanaugh might have been involved in a rather violent sexual assault while in high school. 

“The way you do one thing is the way you do everything,” the Buddha warned.

The withholding of the nominee’s papers is also troubling. If the documents support Kavanaugh’s fitness to serve why is the Trump administration refusing to release them? What are they hiding?

We’ve seen this playbook before. Trump is the only president in 40 years to refuse to release his tax returns. Those returns are, no doubt, supremely revealing. If there’s nothing to hide, then why hide it?

Most Americans are uncomfortable with the prospect of elevating to the Supreme Court a man about whom they know so little. 

Alexander Hamilton’s optimism regarding the judiciary was not blind, however. In Federalist 78 he wrote: “Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union [i.e., collusion] with either of the other departments.”

Isiah Smith Jr. is a former newspaper columnist for the Miami Times. He worked as a psychotherapist before attending the University of Miami Law School, where he also received a master’s degree in psychology. In December 2013, he retired from the Department of Energy’s Office of General Counsel, where he served as a deputy assistant general counsel for administrative litigation and information law. Isiah lives in Traverse City with his wife, Marlene.