Let the Nomination Games begin, yet again. Supreme Court Justice David Souter’s pending retirement has already triggered new volleys in the endless skirmishes of the modern culture wars. Irony is having a field day in the opportunity for public mash-ups over a seat vacated by a man who so completely eshews the spotlight that, at a comparatively young age for Supremes (he’s 69; consider that Justice Stevens is 89…) he is fleeing the glamour of Obama-era Washington for his beloved solitude in New Hampshire.
The blogosphere is now working in overdrive vetting names of potential new justices with acidic litmus tests that will surely leave many names scarred and debilitated. As is true in almost all political decisions, Roe v. Wade, is at the center of this controversy — the 1972 Supreme Court decision that declared a constitutional right of privacy for women and their doctors in the matter of abortion. Roe v. Wade is the white-hot center of most ideological and political debates these days — the right-wing declares anyone who supports the privacy right to be a “fanatical abortionist” or “baby killer” while the left-wing declares that anyone who thinks the nation needs a more thoughtful approach to the central moral issue of Roe — the destruction of embryonic human life — is a Taliban-like oppressor of all rights of women.
This debate has utterly debilitated all other considerations of justice and morality, law and equity in American society today. The very word “justice” has been twisted and demeaned to mean something opposite — “bring ’em to justice” in the cowboy patois of the Bush administration meant everything from invading Iraq to waterboarding. “Justice” in the minds of others means “getting mine, too” — retribution not forgiveness.
So many issues of justice suffer neglect in American society right now. Public education in the nation’s cities remains a scandal of injustice. The pervasive presence of intractable poverty and illiteracy in many parts of this nation lead to violence and patterns of arrest and incarceration that illustrate fundamental inequities of race and social class. The denial of decent health care to the most vulnerable citizens of our society — the elderly, children, the poor — denies the very life of too many people. The rights of workers are at risk especially in the recession. The conduct of agents of law enforcement, Homeland Security, the Intelligence Community and other federal officials creates large risks to liberty and freedom across a spectrum of activities from surveillance cameras on street corners to airport searches to the treatment of prisoners to international rendition practices.
Whether Justice Souter’s replacement has a specific point of view on any of these issues is not the right question for a Supreme Court nominee. Whether the nominee is a strict constructionist (interpreting the Constitution word-for-word) or a judicial activist (interpreting the Constitution in light of modern conditions) is not the right question. The rampant desire to have a nominee who lines-up correctly on a menu of issues is the wrong way to approach this lifetime appointment to the nation’s most mysterious and important branch of government.
Rather, the question is: what is the nominee’s philosophy of justice? President Obama should not just be seeking the right kind of justice according to a list of issues for the Supreme Court. Rather, the president should be seeking Justice.
PS — writing in the Huffington Post, University of Chicago Law Professor Geoffrey R. Stone noted that, like David Souter, many Supreme Court justices in history started out as conservatives, but over time they grew more and more “liberal” according to the prevailing definitions of that word. He writes:
“Why does this happen? My theory is that as justices from widely diverse backgrounds see the endless stream of cases that flow to the Court, they come gradually to appreciate more deeply the injustices that still exist in our society and they come to better understand the unique role and responsibility of the Supreme Court in addressing those injustices.”
Read his entire article here.