The Supreme Court is Baseball, Not Politics
Justice Kennedy announced his retirement, and I met it with an honest yawn. Normally, the news of an octogenarian’s last day of work is met with congratulatory handshakes, pats on the back, well wishes, and sheet cake. It is not typically met with exasperated shrieks of disbelief and shock or politicians questioning the fate of our most cherished inalienable constitutional rights. But yet, here we find ourselves.
I bet Anthony Kennedy is reveling in the media’s coverage and reaction to his leaving the court. He is a lover of all things drama, and sits upon his perch gratuitously musing about his own importance to the country and the court. That being said, the “Kennedy Court” has increasingly tended to the dramatic, offered opinions that sway one way or another based upon Kennedy’s personal whim. I personally will not mourn the loss of the “Kennedy Court,” and I'm excited about the prospect of a court that is anchored by a Chief Justice who sees it's work as more akin to baseball than politics.
In his opening statement at his confirmation hearing, Chief Justice Roberts said:
“I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.”
This is not just an ode to America's favorite pastime. This is John Roberts’s apolitical philosophy. A Justice of the Supreme Court approaches his job in a workmanlike manner, more akin to an umpire than a batter, or a pitcher. The Justices calls balls and strikes as they see them. They do not call those throws that are not presented to them. They do not call throws based on the reaction of the crowd or the players. They call the pitches based on whether the ball presented to the batter has appeared within the strike zone at the moment it reaches home plate. This is the only question they are to answer when adjudicating a batting sequence.
The nomination process frustrates equally culture-warrior conservatives who want an abortion-abolition blood oath and frenzied liberal judicial crystal-ball gazers who fear the loss of minority rights at the hand of some yet-to-be-nominated nominee. Justices should not, and cannot (in adherence to professional rules) comment on cases that are not yet presented to them (including cases which could possibly be presented to them in the future). This includes commenting on hypothetical cases. It would be akin to an umpire calling any fastball a strike, because the last five fastballs he called were strikes. The batter would believe that the call was inherently unfair if the pitch were called before it left the pitcher’s hand. The pitcher would eventually find the whole exercise of pitching to be futile. The fans eventually would cease their attendance when informed that a game would not actually be played, and the decision of winner and loser announced as soon as the officiating corps is selected.
That is where we find ourselves. Pontificators on Fox News and CNN announce the preemptive downfall of Roe v. Wade, Democratic senators announce their decision to vote against “the nominee.” Such Senators do so because the nominee has not even been selected or even announced. The pending nominee will already face a confirmation process that is not centered around their professional credentials, their fitness to adjudicate cases, their education, their philosophy, their thoughts on the justice system, or anything else of propriety. But rather, the nominee will be subjected to political poking and prodding, commenting on their past decisions with every possible answer politically scrutinized and spun in the media spin cycle in a thinly veiled attempt to divine what the nominee will decide in future cases or controversies that the politicians believe will be presented to the court. The politicians will craft hypothetical traps to get the nominee to show their hand in violation of the canons of judicial conduct. Personal attacks and other various political circuses will take place, as well as protests over the nominee’s anticipated stance on political issues that may be presented to the court.
This whole process is an increasingly infantile, immature, and self-important exercise in stupidity and futility. The beauty of our Supreme Court is its unaccountability, its life-tenure, its neutrality, and its detachment. It, and it alone dons the stripes and calls balls and strikes without favoritism, without engaging the political game, without fraternizing with any of the competing political fanbases, and without prejudging any case or controversy.
How did we get here? Politics influenced the court. The public began to believe the Court a political idol, a graven image made in our own likeness and in line with our own public policy whims. This view led to increasing political theater and drama, more exasperating “fights” for or against a nominee’s “campaign” for the court. Judicial confirmations have always been (until the modern post-Bork era) an uncontroversial exercise in credential review and baseline tests for judicial competency. After Bork, and increasing to the current day, the aim of the confirmation process has been discovering and revealing the politics of a judge. This modern history ignores that some nominees have a “side switch” after being nominated. Harry Blackmun, David Souter, Hugo Black, and many more justices were judged to be staunch political partisans and eventually switched sides as the political unaccountability of lifetime tenure set in.
This is the same logic as trying to determine Ed Hochuli’s favorite NFL team and assuming such a lack of integrity that he would throw the Super Bowl game for his favorite team if presented the opportunity. The process involves nasty attacks on the referee corps itself, like Browns fans throwing beer bottles at the refs in 2001. Why do we as a society vehemently condemn (outside parts of Cleveland) throwing beer bottles at neutral arbiters, but then attempt to divine a judge's views, and undermine their credibility with personal attacks? We are more educated with regard to an umpire or referee’s job, than the job of a judge.
As someone who adheres to a certain political philosophy, I want my politics advanced in the manner I believe is most efficacious to those ends. As someone who understands the Supreme Court’s constitutional function, I understand that the way to advance my own political ends is to advocate that the court be as detached from politics as possible. That includes not knowing or caring about a judicial nominee’s political views so long as they are not revealed or overtly utilized in judicial decisionmaking. That includes not pontificating about future cases and controversies or professing some knowledge of the future. That includes reading into their past cases to view and evaluate the soundness of their legal analysis, logic, and decisionmaking process, rather than the results of their decisions. It includes the understanding that each case and controversy is different, that future cases are different from past cases, and that past precedent is colored and changed as new facts and new law are presented by litigants and legislatures. That whole process is breathtakingly beautiful, foreign, detached, apolitical, and wholly undramatic and uncontroversial. In the current political climate, we can find a respite and a relief in this understanding, but only if we choose to accept it over the alternative. The media narratives about the judicial nomination process read more like a script for a fictional apocalyptic political action-movie trailer than the reality it is supposedly covering.
I close with a challenge. Watch the hearings on C-SPAN, without the spin. They are boring and largely snore-inducing, with the exception of a few media fireworks for nightly newsreels. Attempt to read and understand the history of the Supreme Court and the judicial nomination and confirmation process. Use this understanding to separate fact from the fulsome fictions. You are likely to find that the continued existence of humanity does not depend on who is ultimately confirmed for Justice Kennedy’s seat. That’s the conclusion I've reached. Perhaps I’ll enjoy a piece of sheet cake for Mr. Kennedy while watching the hearings.