CLAY JENKINSON: The Jefferson Watch — The Supreme Court: Political From The Get-Go

We like to think of the Supreme Court as a nonpartisan and completely independent branch of government that makes sure laws passed by Congress and the states conform to the provisions of the United States Constitution.

The Supreme Court aspires to that Olympian detachment and judicial neutrality but seldom achieves it. Like it or not, there is a political substratum in court appointments, and it can produce great political tension at unsettled moments in American life. Like now.

Presidents nominate Supreme Court justices and the Senate has to confirm. There has been occasional trouble since the very beginning.

The first justice to be denied a seat on the court was a man named John Rutledge. It was 1795, just seven years into the new constitutional order. Rutledge had written an op ed piece critical of the Jay Treaty — a 1794 treaty with Britain that tried to resolve certain lingering issues from the War of Independence. That was enough for a Federalist Senate to scotch his candidacy.

Jefferson came into office in 1801 in what he called the Second American Revolution. But poised to prevent that revolution was Chief Justice John Marshall, Jefferson’s distant cousin. He was put into his life-tenured position in the last months of John Adams’ failed one-term administration. Adams, who distrusted Jefferson’s democratic radicalism, essentially engaged in last-minute court packing — Marshall and dozens of other midnight appointments — to make sure Jefferson did not take things too far to the left.

Marshall went on to serve for 34 years. He was perhaps the greatest of all Supreme Court justices. He was indeed a thorn in Jefferson’s side. Marshall wanted America to be a great centralized nation state, not a confederation of sovereign states. Marshall envisioned a nation that prized the sanctity of contract above any temporary notion of social justice. He despised Jefferson’s vision of a lightly governed, inward-looking, agriculturally based loose association of proud commonwealths like Virginia and Pennsylvania. We now live in Marshall’s America, not Jefferson’s.

Jefferson struck back at the judiciary in 1804 by convincing his partisans in the House of Representatives to impeach Supreme Court Justice Samuel Chase, a signer of the Declaration of Independence who had become an obnoxious and outspoken anti-democrat from the bench. The question was this: Can you impeach a justice for what you regard as his nasty politics. The U.S. Senate chose not to convict Chase.

Jefferson seems to have sensed that he was playing a dangerous game, one that could erode constitutional stability. In the aftermath, he admitted that such impeachments were a bungling enterprise and he desisted from meddling with the independence of the judiciary thereafter. Jefferson appointed three justices to the Supreme Court. Every one of them wound up disappointing him.

The last attempt to pack the court was in 1937, when Franklin Roosevelt, just re-elected in a landslide, attempt to increase the number of justices from nine to 15 so that his emergency New Deal legislation would not be struck down by judicial conservatives any longer. Congress balked. Even Democrats in Congress, including senators and representatives devoted to the New Deal, refused to give Roosevelt such unprecedented power. He was frustrated, but this is how our system is supposed to work.

What we should want is a justice with a first-rate mind, great analytical powers, an unusually high capacity for legal discernment and nuance, a deep grounding in the history of law, the history of natural rights and the history of constitutions, particularly “our” Constitution. What we want is someone who knows a great deal about original intent but is not a slave to original intent (that was then, this is now, and by the way “that” constitution was written to protect slavery, so how “original” do we really wish to be?) We want someone who prizes a strict protection of human rights over government efficiency or economic prosperity. What you most want on a court is a few crabby civil libertarians who understand that the whole genius of America is to leave as many people alone as possible as often and emphatically as possible.

So why are we already locked into an angry national cage match on Roe V. Wade, the abortion decision issued by the Supreme Court in 1973?

Both parties are behaving in a deplorable manner: The Republicans want the nominee to pledge to overturn Roe V. Wade. The Democrats insist that he or she hint that she will leave current abortion law in place.

Not only is this the wrong basis on which to give someone life tenure, but it trivializes the third branch of our national government into a public policy club consisting of nine unelected and largely unaccountable persons. The great questions of a great nation should not be decided by nine unelected individuals.

They are men and women like other men and women, capable of nobility and capable of pettiness, vengefulness, ignorance, prejudice, bigotry, pride and self-aggrandizement. They have good days and bad. They see some issues with great clarity and others with the kind of muddled gut reactions that characterize all of the rest of us.

The future of this country should be in the hands of an infinitely wider body than the Supreme Court. Our current approach is not much different from letting the starting lineup of the Chicago Cubs determine the future of the United States.

I believe the nomination process should be taken out of the hands of American presidents, who misunderstand and misuse their appointment power for narrow and often temporary purposes, and put it instead into the hands of a severely nonpartisan think tank of constitutional experts who look for raw judicial talent irrespective of the person’s political views. Once the foundation designated someone of outstanding merit, the Senate would confirm or deny with a straight up and down vote.

America is awash in men and women who would be outstanding Supreme Court justices. But the very last questions we should want to ask them is where they stand on Roe V. Wade, or the Affordable Care Act, or affirmative action.

TONY J BENDER: That’s Life — Life Is Gray

I was reminded by an e-mail from a friend that May 31 marked the eighth anniversary of Dr. George Tiller’s assassination. I realized then that it was time for me to finally write about the reality that life is rarely starkly black and white but a palate of grays. 

I still remember the wail I heard from the cell phone as my wife drove from the hospital in Bismarck. “There’s something wrong with the baby!” Those words echo in my head. That wail.

The woman doing the ultrasound — typically performed around 20 weeks — had seen something awful and had abruptly left the room, leaving my wife alone, scared.

The physician returned, and even though two subsequent ultrasounds would reveal how clear-cut the diagnosis was — our baby had half a heart — we were told a second opinion, two weeks out in Fargo, was necessary. Already we had the sense that our obstetrician at that Catholic hospital was running out the clock. That’s how it felt. I don’t know if it was real. Nothing seemed real.

We had 14 days to consider our options, to absorb the pain, with little support or information. Arduous searches on our dial-up connection — this was 18 years ago — offered little hope. An experimental series of operations by a doctor in the Northwest, had minimal success rates. If survival is always success. The process seemed torturous.

By the time the second physician confirmed the condition was “not compatible with life,” our options had been legally restricted by a relentless clock. It felt like a noose was being tightened by a system bowing to politics, indifferent to mercy.

We had terrible options — the desperate series of operations that almost certainly would drag out the inevitable. …  The Fargo hospital had offered to allow our child to die in the delivery room. Small mercies. But would they really stand by and do nothing? We’d lost trust in the medical community. Was it worth the risk to physical and mental health?

I know what I felt. My God, what was my wife feeling?

The doctor made some calls. There were only a few possibilities for an abortion at that stage of the pregnancy. In America. After Roe v. Wade. Only one accepted us, the clinic in Wichita, Kan.

We kissed our young son, Dylan, goodbye, and with the weight of some family members who opposed our decision bearing down on us, drove south to a man Bill O’ Reilly called “Dr. Tiller, the Baby Killer.” When you frame it that way, it’s easy to draw black and white lines. But our world was gray.

The clinic was a fortress. It had withstood a bomb, and Dr. Tiller had already survived five bullets. Even today, abortion providers wear Kevlar vests. In America. Land of the Free. For sure, Home of the Brave.

Each day, the clinic was surrounded by protesters. “There’s still time to save your baby,” they yelled. Oh, were it true.

We had opted for an intact delivery. Over days, using natural methods, labor would be induced. But first, another ultrasound to confirm what we already knew. An injection stilled what there was of our baby’s heart. My wife was under conscious sedation during the process, merciful and logical, I suppose. There’s no turning back.

After our baby was euthanized, she wondered, “When do you suppose they’re going to do it?”

“They already have,” I answered in that motel room. And then I wept.

There were other couples from across America, each carrying their own personal tragedy into a room where we met each day for counseling from Dr. Tiller. Among the refugees was a young lawyer and his wife from Pennsylvania. Their daughter, Olivia, was missing a brain.

It dawns on me that we were clinging to each other like shipwreck victims.

One by one, the women went into labor and then went home to heal. We were the last. Gunnar was stillborn the day before my birthday. Dr. Tiller, who was ordained, performed a baptism as I held the tiny cold body of my son. It was hard to let him go.

As we drove back to our living son, my wife began to emerge from the fog and grapple with her grief. We were at different stages in the process.

The ashes arrived in a small brown package. Dust. We held a small funeral, conducted by an understanding minister, and scattered the ashes at the base of a freshly planted weeping willow, forever known to us as Gunnar’s Tree. My wife framed the tiny ink footprints they gave us and later had them replicated in a tattoo.

Two physician friends told us we had made the right choice. That eased some of the pain, doubt and guilt. Our new obstetrician encouraged us to not give up, and we didn’t. India was born full of life in 2000.

On May 31, 2009, we heard the news. George Tiller had been gunned down while ushering. In church. In America. And I wept.

Our marriage ended last year. I got the footprints and the tree. I tucked the footprints into a drawer months ago. Time to move on, right? Sometimes I look at that splendid tree and don’t associate it with heartbreak. Should I feel bad about that? Another gray area, I suppose. Other times I wonder if I really ever left Kansas.

© Tony Bender, 2017