Get ready for ‘ um­pire myth’ af­ter Scalia’s death

Chicago Sun-Times - - OPINION - BY SU­SAN BAN­DES Su­san Ban­des is the Cen­ten­nial Dis­tin­guished Pro­fes­sor of Law at DePaul Univer­sity and a 2016 Pub­lic Voices Fel­low of The Oped Pro­ject. FILE PHOTO | RON ED­MONDS/ AP

The grief, praise and crit­i­cism that fol­lowed the death of An­tonin Scalia on Satur­day were quickly fol­lowed by two con­tra­dic­tory re­ac­tions. We were ad­mon­ished that it was too early to talk pol­i­tics. And at the same time, we were treated to some real political hard­ball.

Sen. Mitch McCon­nell, R- Ky., staked out his political po­si­tion quickly: Pres­i­dent Obama should not nom­i­nate any­one: “The Amer­i­can peo­ple should have a voice in the se­lec­tion of their new Supreme Court jus­tice.” He vowed to block any nom­i­na­tions, de­spite the fact that there are more than 300 days left in Obama’s pres­i­dency.

No­tice what McCon­nell is say­ing here: The new jus­tice should re­flect the views of the na­tion. In other words, ju­di­cial ide­ol­ogy mat­ters. A judge’s back­ground, view of the world, and political be­liefs— all of th­ese should be on the ta­ble.

But once the con­fir­ma­tion hear­ings be­gin, most sen­a­tors will be try­ing to sell a dif­fer­ent story. Chief Jus­tice John Roberts put this view most mem­o­rably dur­ing his own con­fir­ma­tion hear­ings when he promised with a straight face that his po­si­tions on var­i­ous is­sues— which were uni­formly con­ser­va­tive— were ir­rel­e­vant to what he would do on the bench.

As he ex­plained: “Judges are like um­pires. Um­pires don’t make the rules, they ap­ply them… They make sure ev­ery­body plays by the rules, but it is a lim­ited role.”

Dur­ing those hear­ings, we were told that the only le­git­i­mate way to eval­u­ate a can­di­date is by look­ing at whether he is a tal­ented lawyer, an eth­i­cal per­son, good at the “craft” of law.

But no le­gal pro­fes­sional ac­tu­ally be­lieves the myth of the um­pire judge. We can pre­dict nearly ev­ery Supreme Court vote in ad­vance, based on the trans­par­ent political views of the jus­tices in ques­tion.

Chief Jus­tice Roberts, who said he only wanted to call balls and strikes, al­most al­ways votes ex­actly the way you think he would. His be­hav­ior be­fore he as­cended the bench ac­tu­ally told us what we needed to know about how he would act on the bench. And that’s fine, for those who share his ide­ol­ogy.

What is not fine is the lie that the Amer­i­can peo­ple are told at con­fir­ma­tion hear­ings— that be­liefs don’t mat­ter.

This fan­tasy ex­ists to dis­tract us from the real ques­tions about what judges be­lieve and how it will af­fect their ju­rispru­dence. The Supreme Court is al­ways a political body, and its jus­tices have diver­gent views about their mis­sion. Some think the court has the duty to pro­tect the pow­er­less be­cause the sys­tem won’t pro­tect them. Some think the Court should help mi­nori­ties who have long suf­fered dis­crim­i­na­tion. Some think na­tional se­cu­rity should trump in­di­vid­ual pri­vacy nearly ev­ery time.

Th­ese are the nakedly political ques­tions that go to the heart of our democ­racy. We de­serve con­fir­ma­tion hear­ings that delve into them with­out apol­ogy, and don’t con­de­scend to us based on fic­tions about a non- political court.

McCon­nell will soon be cry­ing al­li­ga­tor tears for a non­po­lit­i­cal hear­ing, but for now, he’s speak­ing the truth: the Amer­i­can peo­ple de­serve a voice.


Late Supreme Court Jus­tice An­tonin Scalia.

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