Back in March, I wrote a post called “Morality & The Supreme Court.” It was a critique on “two opposing essays on the criteria a President should use when nominating a judge to the Supreme Court.”

In light of Justice O’Connor’s resignation this week, I figured I’d repost a link to it today. But after reading it over, I found that there’s a lot of rambling, so if you’re not interested in the full post, which you can find if you follow the link above, here is the less rambly (though still wordy) version.

–

In “The Confirmation Mess,” Stephen Carter argues that the bitter, partisan feuds that have erupted during recent confirmation processes can be stymied by re-thinking the selection criteria: “The most obvious way to avoid leaving blood on the floor is to name individuals of the highest caliber and experience.” Carter’s method neglects to look at the judge’s political leanings in his criteria; that is, the President should not consider how the judge will vote on any specific and heated issue. If we continue to allow a politically motivated confirmation process, “[t]here will be less and less reason to treat the ‘opinions’ of the courts as authoritative…” and since their authority rests on their being beholden to neither force nor will, which is the sole reason why they receive life tenures on the bench, there becomes “no reason at all to grand the judges — and justices — life tenure.” If they’re going to be political, we should treat them politically. That is, we should elect them.

Beyond my petty and semantic concern for how Mr. Carter would propose to define “highest caliber,” this position raises other concerns in regard to the rightness of a president ignoring the political leanings of a Supreme Court nominee. By rightness, I mean both the moral and justifiable (i.e., reasonable) senses of Carter’s argument.

In “The Political Court,” Randall Kennedy argues both concerns. In the reasonable sense of the argument, Kennedy suggests that it is impossible for us to accept the notion that an individual will be without a political perspective. He makes a very persuasive point when we remember that Feminism and other postmodern political movements have revealed that perspective itself is political.

His second response follows from this. If every individual is necessarily political, and every individual’s interpretation, every individual’s perspective, is necessary influenced by those politics, and if, as Lakoff and others have shown us, politics is moral, then…

a president would be a fool or, worse, politically amoral to elevate to such an office anyone whose politics suggested a proclivity toward policies with which the president strongly disagreed.

Note the way Kennedy unites the concepts of reason [foolishness is the lack of a justifiable reason] and morality in the first two lines. It is this conceptual unison that is the basis for his concern. He does not see a distinction between morality and reason.

Which is interesting, because even though he wrote his essay in response, Kennedy’s argument was already introduced in Carter’s:

[P]erhaps what seems to be the confusion reflects something fundamental in the American character. Perhaps most Americans do not draw a distinction between personal, moral belief and constitutional interpretation because they do not believe that it [the distinction] is real… (my italics)

This is followed by a short passage:

…the mere fact that a handful of scholars who ruminate on these matters in the old fashion believe that the distinction is real does not mean that anybody else is obliged to think so…

It’s a rather funny thing for a political theorist (scholar) to write.

Despite this fundamental nature of the American character, Carter insists that the distinction is real, that there is a distinction between morality and reasonability (which is the faculty that allows for constitutional interpretation), and that it is this distinction, this open space between the concepts, that allows for the words that comprise our written law to run free.

Obviously, I agree with Carter. I think that reason is separate from morality, and the fact that they are different words is what I point to as proof of my conceptual separation. While they share the same orbit in a constantly moving system and they influence each other’s places in that orbit, they are separate entities nonetheless.

I think that in our judges, we should privilege their sense of reason over their sense of morality. Morality, of course, should be considered, but it should be considered as an object that is ultimately subjected to the force of reason. It should influence the decision – it is reasonable to desire the moral, after all – but the moral should not determine the final judgment.

I agree with Kennedy, on the other hand, that the moral is political and that it is amoral to not consider an a possible Supreme Court nominee’s political leanings. I would like to remind the reader, and Mr. Kennedy, however, that amoral is not immoral.

Amoral processes we all can live with. It’s the immoral processes that will hurt us.

Which leads me to another concern I have with Kennedy’s demand for a nominee’s politics and morality to be included in the confirmation process. The “us” mentioned above is you, me, and millions of other people who share this country and its laws. Most of us are different from one another. One person’s morality is another person’s immorality. Without a doubt, the president’s morality system is opposed by the morality system held by a recognizable percentage of our fellow citizens. By selecting a judge on the strength of his or her morals, the president necessarily performs an immoral act in the eyes of those whose morals oppose his own.

If the president was to attempt to perform his search for a nominee in an amoral manner, he would be working on behalf of the majority of the citizens whom he represents, which is, morally speaking, the right way for a reasonable, democratically-elected representative to act. It would be a majority because while it is a fact that not everyone shares the same morals, it is a fact that everyone shares the same faculty of reason (even if we don’t listen to it all the time). To privilege reason over morality is to privilege the perspective of the many over the perspective of the few. It is to privilege democracy over oligarchy.

That is, it is immoral for the president to act morally in this instance. Instead, he should act reasonably.

Finally, all else being equal, I think that the president should select a nominee who is able to read the words through the constraints of the law. The law is created by man in his attempt to create a perfect – or at least, a better – society. But men, and now women, are not perfect, and we necessarily screw up when writing the laws. What we should hope for in a judge is the vision to see through the law to the spirit underneath it, not the illuminated law but the illuminating spirit of the words.

Kennedy presupposes my religious tone in his essay, when he writes, “Pleas to de-politicize the selection and confirmation process…represent a quasi-religious yearning to make the Court into a shrine above the messiness of politics.”

I stand guilty as charged.

I stand guilty of nostalgic yearnings for a world where transcendence (above the messiness of politics) is a good thing.

And following Mr. Kennedy’s judgment that transcendence is impossible (he asks Carter to show him one instance where the confirmation process wasn’t political, and concludes, “He will be unable to make such a showing because, unsurprisingly, this moment has never existed;” He seems to be saying that since it has never happened, it never can. that is, transcendence from the continuing process of history is impossible), I stand guilty of contradiction, yearning for the impossible.

But most of all, in my understanding of all the arguments behind why Kennedy suggests that transcendence is impossible, I stand guilty of hope.

I guess my hope stems from my heritage. I’m just too darned American to recognize something as being impossible. Americans walked on the moon, for heaven’s sake! Striving for the impossible is a fundamental aspect of our character.

Furthermore, I’d like to remind Mr. Kennedy, that striving is not the same as yearning. They are different words, regardless of interpretation.