Another Boy From Brazil

The latest nomination for a seat on the United States Supreme Court continues a process filled with ironies that started in 1987 with the nomination of Robert Bork to the court by President Ronald Reagan.

Bork was a very prolific writer who had authored countless law review articles which often espoused controversial positions on social issues, sometimes using incendiary language

Armed with this paper trail, the Senate Judiciary Committee, made up largely by Democrats, examined Bork about his views concerning the right to privacy, the Voting Rights Act, the First Amendment and censorship and other subjects. By the time the hearings ended, Bork’s views were portrayed as clearly outside the mainstream. Bork’s nomination was rejected by the Committee and the full Senate.

This started a trend in which Presidents sought nominees with little or no published academic record and who would steadfastly refuse to discuss any issue that might come before the Court. One such stealth candidate was David Souter nominated by President George H.W. Bush. While Souter had little in the way of published views, he turned out to be much more moderate than Bush or other conservatives bargained for.

The ultimate stealth candidate was Clarence Thomas, who couldn’t recall ever discussing Roe v. Wade or the topic of abortion with anyone in his whole life.

Thomas evolved into a stealth justice, asking only two questions during the quarter century that he has been on the Court.

Ask yourselves, how many people would hire a lawyer to represent them in court, who has asked two questions in court in twenty-five years?

Now days, a Supreme Court nominee provides less information than a criminal who has been given a Miranda warning.

In addition to having no views publicly expressed, the trend has been to nominate judicial candidates who are younger and younger, capable of serving on the high court for decades. Administrations of both parties have succumbed to this desire.

At age 49, Neil Gosruch is the youngest Supreme Court nominee in 25 years. We have decided to sacrifice life experience on the altar of longevity.

One of the ironies that Gorsuch’s nomination highlights, that is peculiar to Republican Administrations, is that the nominee must be an “originalist” or “textualist” in the mold of Antonin Scalia. Scalia’s approach to constitutional interpretation dictated that the Constitution had to be interpreted according to the intention of the Framers without regard to considerations that arise as society evolves.

In short, it has no more relevance to the present age than the Dead Sea Scrolls.

Gorsuch’s nomination mirrors those of John Roberts, Samuel Alito and, to a lesser extent, Clarence Thomas.

They all fit the pattern of young Republican apparatchiks, who have served in a prior administration, have left no paper trail nor willing to give any hint about what their views on the monumental modern societal issues that might come before court. Despite their youth, they all cling to a view that the Constitution must be interpreted in the light of events that occurred over two hundred years ago. No one questions their intelligence or academic credentials but it does resemble a judicial replay of the Boys from Brazil.

I remember a Supreme Court that was composed of giants like Earl Warren, William O. ’Douglas, Thurgood Marshall, John Harlan and even Lewis Powell and John Paul Stevens in later years. People who brought a wealth of experience to the court from a variety of worlds.

It reminded me of an exchange that was said to have occurred between Lyndon Johnson and Speaker of the House Sam Rayburn. Johnson was recounting the academic and business backgrounds of John F. Kennedy’s cabinet members and described them as the “best and the brightest” the nation had to offer.

Rayburn is said to have replied’ “That might be true, Lyndon, but I’d feel better if one of them had run for sheriff once.”

Now that, would be something to hope for here.