23 September 2020

Balls, Strikes, and the Rule of White Men

It appears that relatively soon, there will be a vote to confirm a new US Supreme Court justice in the Senate. It will require 51 (perhaps technically 50, as Vice President Pence would cast any tiebreaker and there's no statutory or constitutional provision prohibiting tiebreaking on nominations — only Senate rules that can be waived) votes to confirm; filibusters against Supreme Court candidates are no longer allowed under Senate rules. The lack of a filibuster is a good thing — I am personally against filibusters that do not include members of all parties, and definitely not regarding nominations, which should be dealt with in the respective committees — even though it is almost certainly going to result in confirming a candidate I find unsatisfactory. Unsatisfactory under even my preference for a smart judge who listens but whose ideology is not entirely compatible with mine.1 But:

  • If voting on this nomination were restricted to whites only — and remember, since passage of the Voting Rights Act in 1964 the Senate has remained on average over 95% white — the Heffalumps would lose exactly one vote, leaving a final tally of 53–42 on a straight-party-line vote.
  • If voting on this nomination were restricted to men only — and remember, women's suffrage became law only a century ago — the Heffalumps would still have 45 votes… an even greater majority, 45–29 on party lines.

Our Dear Leader has pledged to nominate a woman. (Whether that "woman" is another Harriet Miers will be revealed on Saturday and in the days and weeks — and probably years — thereafter.) But since the Perfesser brought up baseball in his well-considered objection a decade and a half ago, I'll bring up another aspect of that sport I despise. This aspect, however, was celebrated by our current Chief Justice during the course of his own confirmation: The allegation that a judge's (or Justice's) job is to call balls and strikes.2 Which doesn't help all that much in the midst of today's rugby scrum on politics, governance, rights, and obligations. And I mean an old-school rugby scrum, from the days when there were no fights in rugby because the next scrum would provide ample opportunity for broken bones, missing teeth, and general mayhem. The old "Give Blood — Play Rugby" t-shirt wasn't really a joke.

At a somewhat broader level of abstraction, though, this entire process subverts the concept of the Rule of Law. If the identity of both the judicial candidate and nominating/confirming party are so important; if the nominee's (and party's) ideological, demographic, and other predispositions are so important; what does that say about law itself? As Clausewitz might well have said (especially given his family's own litigation history over property rights — and if he was writing in English, because this just doesn't work in the German of Feuerbach and Nietzsche), "Law is merely politics continued by other means." Or, more to the point (and also Clausewitz with even more idiomatic translation), "Everything in law is simple. But each of those simple things is very difficult."

If the precise identity of the judge matters so much that overt hypocrisy in support of one's policy preferences is called for, one must question the power of the Rule of Law over the Rule of Men. And that — far more than controversies over abortion, or immigration, or the death penalty, or civil procedure, or discrimination — should terrify anyone who can spell "Enlightenment" without being granted five consonants, a vowel, and the clue "philosophical and cultural movement." Or has read the Constitution and Federalist Papers, let alone the records of the Constitutional Convention. Or even more nerd-like read the philosophers, political economists, and novelists of the eighteenth century so familiar to the Founders.

This nomination process proves that we don't have the Rule of Law. Pretending otherwise is just as intellectually honest as Senator Graham's blatant hypocrisy. Which — as appalling as it is — is not the worst hypocrisy that we have seen in the past week on this issue, nor the worst that we'll see this year.3

  1. If I waited for confirmation of judges whose ideology is entirely compatible with mine, we'd have a very sparse bench indeed. And that would subvert my ideology.
  2. Sadly, even on its own terms this is a disturbingly apt analogy, but not in the way that Chief Justice Roberts intended. As any Major League player (and most Major League fans who are paying attention) will tell you, the purportedly objective strike zone is anything but. Different umpires have different general "strike zones," let alone situationally different ones (come on, you don't really think a top pitcher known for pinpoint control gets more benefit-of-the-doubt on a marginal call than the guy just up from AA ball, do you, you cynic?). The less said about foul tips, balks, excessive pine tar, and spitballs, the better. So the balls-and-strikes analogy actually harms the meme.
  3. But then, as a commanding officer under USAFE jurisdiction while he was on staff there, I have more than a little concept of Graham's… difficulties… with distinguishing among policy, principle, and particular circumstances — especially the impetus to apply everything consistent with military justice policy in Germany to England and Italy without regard to context. (Admittedly, Graham was not senior enough to blame for all such problems, such as those related to the unconstitutional and impairing-of-good-order-and-discipline AFR 39-10 ¶ 5-26(h).)