Vapid and Hollow: Candidate or Congress?

A gauntlet has been thrown down, a supreme challenge has been made, and a duel to the death has been called for. Is this a World Wrestling Championship steel cage challenge, a Food-Network throw-down with Bobby Flay, or an Olympic grudge match between two life-long competitors? No, it’s the most recent Supreme Court nomination of Elena Kagan.

Kagan has written that the confirmation process has become a “vapid and hollow charade” without value or substance. A position that I have to agree has become the modus operandi of the Congressional confirmation process. An activity that is not only engaged in brazen political posturing for party-defined reasons but which is actively destructive to the interests of the American public.

The Republican Senator John Kyl of Arizona said that he was concerned about appointing someone to a life-time position on the court who had the absolute final word on issues brought before the court. I hope he understands that that is not true. He as a representative of the people is specifically authorized to put forth either appropriate law consistent with the Constitution to achieve the results that he believes are needed, or to even sponsor an Amendment to the Constitution. The Supreme Law of the Land is administered by the Supreme Court; but it is ultimately the Will of the People that determine what the Supreme Law of the Land is.

And was the challenge made by the Senate Judiciary Committee leadership? No, it was made, perhaps without expectation that it would become applicable to herself, by the nominee when she worked as a staff lawyer for the Judiciary Committee. So while not made by the people’s representative body that is charged with the responsibility for ‘advise and consent’ on the approval of Supreme Court justices, the challenge exists; but will it be accepted? Will Congress fulfill their responsibility? Will they do their duty to serve the interests of the people and our democratic and Constitutional principles in approving or rejecting the nominee? Or, will Congress put on another Party-centric, ideological, self-serving image-promoting farce where the measure of success will be the number of minutes of media coverage that individual Congressional members will receive? And will the media support this dismal display of vacuous content without attempting to exert itself enough to even comment on their own lack of insight into the lack of meaning or insight on the part of the politicians?

Perhaps we will be surprised this time. Perhaps, either the nominee, a member of Congress (or two), or both will step forward and do something meaningful; if for no other reason than to demonstrate to the American people (and even their colleagues) that they possess a sense of history, of responsibility, maybe even a degree of intellect or of understanding the essential role fulfilled by an independent judiciary.

For Congress’ players in this theater, they (or their staff) would have to craft questions that are central to gaining an appreciation of what perspective the nominee has on the role and obligations of Supreme Court justices, on how they view and comprehend the rational, justifications, and basis of current law and current precedents and ruling of prior Supreme Court cases. Congress might even ask the nominee whether any decision by the Supreme Court could be anything but ‘activist judicial’ action.

For the nominee, she could engage both the public and Congress in her responses the Committee questions. First, besides responding to her inquisitors, she could talk to the media and the public as she is answering the questions being asked. Second, she could analyze and critique the quality of the questions in the manner in which she responds. She would of course want to do so in a polite and respectfully manner, even in cases where the questioner is unaware of their own lack of propriety in acting on behalf of the American public.

What America needs and deserves is a procedure and process which shows that the participants properly recognize their responsibility to the American people, to our Democratic principles, and to the spirit of governmental institutions that serve the rights and liberties of a freedom loving citizenry.