Reading the Politburo

In case you are too young to remember, or have conveniently forgotten the 1980’s, the Politburo was the ruling body of the Soviet Union.  It was a static organization, or seemed so, a bunch of fat old guys, sporting the-good-life double chins and top-of-the-line fedoras watching the annual May Day parade of Red Army troops, Young Pioneers, tanks and missiles chuntering through Red Square.  This scene was a fixture during the Cold War, a sort of yearly report card.   The political types would study the few pictures from the event.  Who was in? Out?  Who stood next to whom?  Who seemed out of sorts?  Who was throwing shade?  Organizations like CIA and NSA would then study these pictures for the next year, making prognostications that, because of their high security quotients, would never become public.

Covering the Supreme Court is a lot like trying to decipher the old Soviet Politburo.  Who’s in?  Out?  Who’s changing his/her ideological stance?  Who holds firm?  The Supreme Court is the closest thing the U.S. government has to the Politburo.  The justices, once they make it through a hairy confirmation process, have a job for life.  Some have been known to resign but the greater likelihood is that they will die in office.  The Court is meant to smooth out the rise and fall of politics that afflict the Congress and the Presidency, part of our governmental checks and balances.

Most of the time this works, but it’s difficult.  The Supreme Court can pick and choose its cases. The cases are chosen because the justices feel that these address some concern or rule that needs adjudication.  Thus, you can take your case to the Court but, unlike the lower courts, the Court does not have to hear your case.

One of the most important jobs of the Presidency is to nominate Supreme Court justices, who then go through a confirmation process. This can be trying for the justice in question. It behooves a President to pick someone who has a chance to get through inevitable Congressional nitpicking.  Robert Bork, for instance, was bounced out as too radical and Justice Clarence Thomas was lambasted by the Anita Hill controversy, something he evidently still resents.

The Supreme Court operates in near secrecy, hiding under its vanishing cloak in a place otherwise full of overblown ego and Barnum & Bailey  brinksmanship. When the Supreme Court is put on the spot, as during the events of the 2000 elections and the hanging chads controversy, it does not do well, adding to the confusion rather than abating it.  The Supreme Court is not built for speed.

When you do get decisions, they must be carefully parsed, defying the professional brevity of even the most astute legal reporters.  The Court has a tendency to rule on highly technical points of the law which are almost impossible to translate for the average layman.  When the Court does venture into social issues, i.e.  Roe v. Wade, it assumes a public role, in that case, too public.

Ever since the Roe v. Wade decision the Court has avoided social controversies.  It may rule on controversial cases, but usually the ruling is on  legal technicalities which result in the case being remanded to a lower court, which then renders a ruling according to the parameters of the Supreme Court’s decision.  Very few cases have the reversal weight of Roe v. Wade and, in modern times, very few have been become so fraught in the public landscape.  Even the 2000 hanging chad election controversy was put to bed when Gore conceded the general election to Bush, having won the numbers but not the Electoral College.  We were treated to untranslatable rulings from the Court after which the controversy died down.  Just think, had George W. Bush conceded, Al Gore would have faced the events of 9/11.  The ensuing invasion of Iraq probably would never have taken place.  All because the Court seemed to disprove the chads issue. That may have been one of the most important Court decisions of recent times, affecting not only thousands of lives but geopolitics as well.

Many mainstream Republicans put aside their reservations about Mr. Trump precisely because the next president would certainly nominate a justice to replace the deceased Justice Scalia.  It was one of the times that party loyalty actually trumped (no pun intended) Donald’s distasteful behavior.

So, Mr. Gorsuch may be a nice guy, bright, attractive and fit, well-spoken, relatively young, well regarded in the legal community.  Still, he’s up for a lifetime appointment wherein he can do something blasphemous like change his mind as people are wont to do over the course of a long and thoughtful life. Congressional grandstanding, backbiting, rumor mongering and muckraking commences.  The stakes are high, a generation of legal rulings hangs in the balance.  If Mr. Gorsuch does make it through the gauntlet, however, he will be in the Politburo for life, safe behind the vanishing cloak of untranslatable legal technicality, sitting pretty in the most exclusive club in the country.

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