Sunday, May 10, 2009
President Obama and Justice Ginsburg seem to be saying that a Supreme Court Justice should function like a legislator, that is, determining "What kind of social policy should the US have?"
But, there are two huge problems with this line of thinking. First, a committee of nine people appointed for life is an inadequate group to be representative of over 300,000,000 people. Because the Founders understood the risk in giving too much power to judges, the US Constitution calls for the legislative branch to be much bigger than the judicial branch. And, the legislative branch members are to be elected by the people far more frequently than appointing judges for life terms.
Second, the US Supreme Court takes up and decides about 150 cases each year. These cases encompass only a fraction of the public policy issues that courts across the nation address. These cases that make it to the Supreme Court are in a very real sense, arbitrary because they reflect special facts of how the legal parties in a particular case interacted.
Thus, this does not mean that Supreme Court cases are representative of how things happen in the broader quilt of our 300,000,000+ person society.
For Justice Ginsburg to say, "the 'worst part' is the image of a single woman at the high projects, particularly to young people visiting the court: "Young women are going to think, 'Can I really aspire to that kind of post?'"
To which I reply, "Yes you can. You 'aspire' but that does not mean you succeed in attaining the goal." Women equal men in law schools and have for many years but this mantra of "equality" ignores the basic differences in humans. We all have talents but no two of us are alike - that is why we have our Constitution, a most enduring document designed to protect people and focus on the law (vs. tribe, religion, sex, etc.).
Does Justice Ginsburg want a female, or a liberal female? Would she support US Court of Appeals for the District of Columbia Justice Janice Rogers Brown, a dark-skinned conservative?
Sunday's article by Boston Globe columnist, Jeff Jacoby, also discusses this issue here.
My wish for the Supreme Court, and all other courts, is the appointment of people who know the US Constitution, our law. A basic tenet we have failed to teach our youth for decades is that the Rule of Law is a key reason the western world thrived. One's success was determined by work and an equal application of the law. There are and always will be exceptions but in general, we have been able to push human life spans and prosperity for more people beyond anything ever imagined by people just a century ago.
Purposely our Founders separated church and state. Purposely they designed a system that so far provides the most equal treatment for all in a judicial sense.
If the "law" reverts to decisions based on tribe, race, sex or religion, all of us will lose.