Tag Archives: advise and consent

About That Umpire Analogy…

In the charade labeled “hearings” on Brett Kavanaugh’s nomination to the Supreme Court, we have once again been treated to the facile comparison of judging and “umpiring,” first used to great effect by now-Chief Justice John Roberts.

There has been plenty to criticize about these hearings, even if the unconscionable and un-American treatment of Merrick Garland isn’t still sticking in your craw. Like so much of federal governance, which has abandoned even the pretense of concern for the common good, the process of selecting a Supreme Court Justice has devolved from a consideration of the candidate’s character and qualifications into a battle for partisan dominance.

Even before the late-breaking allegations that he tried to rape a young woman while in high school–allegations that appear more credible by the day (why else would Senator Grassley have previously secured and pocketed that letter by 65 women saying Kavanaugh was a nice guy), and considerable evidence that he had perjured himself during his prior confirmation hearings, Kavanaugh had emerged as a (very accomplished, clearly intelligent) partisan hack.

We shouldn’t be surprised by either the extreme partisanship or the lack of candor; that’s why he was nominated.

His unwillingness to really engage Senators’ questions, and his pat (non)responses have been par for the course, as the process has become more superficial over the years. The “umpire” analogy is of a piece with the smug responses we’ve come to expect, but my cousin–a doctor with a blog of his own that I quote from time to time–had a perfect reaction to that bit of sophistry:

I usually devote time to exposing health frauds and quackery. But now, I can’t resist bigger prey, namely the U.S. Supreme Court. Recently candidate judge Brett Kavanaugh stated that he likened his Judicial position to that of an “umpire,” an opinion previously attributed also to Chief Justice Roberts during his early hearings in 2005. This assertion, while seeming to express purity and impartiality, is patently false!Why? Because we can first use the example of a real umpire, who works individually in a baseball game and makes binary decisions such as “safe” or “out.” Although usually easily decided, borderline decisions can be resolved by instant video replay, again observed by a single person, usually the umpire himself.

Now let’s extend this analogy to the supreme court: Using the baseball analogy, we place nine justices, or “umpires,” near first base, in order to judge outcomes. A ground ball results in a close call at this base, and our justices then, after thorough discussion, decide that, by a vote of 5 to 4, the runner is out. But the minority of 4 think, possibly correctly, that he is safe. Sound ridiculous? It is!

Here is what makes this scenario so ridiculous. Out of necessity, judges make complex decisions that are subjective, vulnerable to individual bias, education and background, usually require more than one person, and are subject to later reversal by other courts or, in the case of the Supreme Court, even the same court in later years. Examples of reversals are manifold and include such issues as legitimacy of slavery, equal access to public restaurants and schools, etc., etc. Does that description sound even remotely like an umpire? I think not!

I’d say that’s an excellent diagnosis!

 

Meanwhile, Back at the Constitutional Crisis….

Checks and balances. Impartial justice. The rule of law. These are considered to be bedrocks of American government–or at least, they have been. Yet a full-throated attack on those principles has been inexplicably downplayed if not ignored by the media: the inexcusable refusal of Republicans in the Senate to fill vacancies on the federal bench.

This effort to subvert a co-equal branch of the United States government did not begin with Senate Republicans’ unprecedented refusal to “advise and consent” to President Obama’s nominee to replace Justice Antonin Scalia. For the past several years, the Senate GOP has stubbornly resisted acting on most of Obama’s judicial nominees.

Note that this refusal is entirely unconnected to the bona fides of the individuals nominated. The Senate has declined to confirm them because they are Obama’s nominees.

According to the Federal Bar Association, vacancies in the district courts, where most federal judicial work gets done, are reaching crisis proportions: 65 seats on the federal district court bench and at least 90 vacancies throughout the Article III courts. That’s more than 10 percent of the federal judiciary.

When court dockets are slowed to a crawl, when there simply aren’t enough judges to move litigation at a reasonable pace, people with legal grievances are the ones who bear the consequences. They face unpalatable choices: they can settle for less than they are entitled to or wait an extra couple of years for their day in court.

When neanderthal Tea Party types throw tantrums and completely shut down government, everyone notices–and the polls reflect widespread disapproval. Refusing to fill positions that are needed if government is to function properly is far less public, so it doesn’t engender the same level of public opprobrium, but the result—while slower—is the same.

Recent vows by Senators Cruz and McCain to block Supreme Court nominees through an entire Clinton Presidency, and reports that Senate Republicans are already meeting to plan how they will block her nominees should remove any doubt about the motivation for the GOP’s behavior.

In North Carolina, Senator Richard Burr was recorded stating that if Clinton is elected, he will do everything possible to “make sure that four years from now, we’re still going to have an opening on the Supreme Court.”  Here in Indiana, GOP Senate candidate Todd Young has enthusiastically thrown his lot in with those promising to block Merrick Garland, or anyone else nominated by Obama–or, presumably, Clinton. His website has featured a prominent “petition” encouraging signatories to “stand with Todd” against filling the vacancy.

This is what it has come to: Candidates for the United States Senate are asking Americans for their votes; in return, they promise to throw sand in the gears of the government they are being elected to manage.

Vote for me, and I’ll work to dismantle our Constitutional system!

Todd Young, a candidate for the United States Senate, is proudly telling voters that when the interests of the nation—their interests—come into conflict with the prospects of his political party, he will ignore his obligations to them and to the Constitution if doing so will benefit his party.

We are getting used to politicians placing partisanship over country, but the predictability of this behavior doesn’t make it any less reprehensible.

Our local sorry excuse for a newspaper reported Todd Young’s position on the courts as  “he will work for judges in the mold of Justice Scalia.” It didn’t reference his “petition” or contain any indication that anyone had bothered to ask him about his pledge to deny confirmation to qualified jurists simply because the other party nominated them.

The lack of media attention to this intentional crippling of the federal court system, an issue that affects all Americans, is frustrating. Why isn’t every candidate for U.S. Senate being asked “If elected, will you do your job? Will you provide your honest advice and consent to nominees for the federal bench? And if not, why not?”

I for one would like to hear Todd Young’s response.

Addendum: If you are as frustrated as I am about what has passed for reporting during this election, the ACLU is hosting a discussion tonight, at 5:30, at Emmis Broadcasting. The title is “Election 2016 & the Media: A Free Press or a Free-for-All?” Details are here.