Court's Roll Has Changed Greatly

Kagan Will Be Confirmed - Get On With It

Considering that it is one of our constitutionally defined three branches of government, the federal judiciary, particularly the Supreme Court, receives remarkably little attention most of the time, certainly not on a par with Congress or the executive branch.

It is only when a nominee faces the Senate, as Elena Kagan does now, or when some controversial decision, such as Gore v. Bush in 2000, hits the headlines, that anyone pays much notice.

It was not always so. In 1787, the notion of an independent judiciary was novel, if not radical. Courts had historically been under the thumbs of kings and nobles, and whatever passed for justice was final and unappealable. Even our founders didn't know how this new idea would work out.

In its early days, our Supreme Court was not very significant. There were a few procedural cases, but the new country was feeling its way, and nothing of monumental importance came along. The court did not even have its own building; it met in Philadelphia City Hall.

That changed very soon after the court's fourth chief justice, John Marshall, was appointed in 1801. In 1803, the case of Marbury v. Madison arrived, and, for the first time, the court held a law to be unconstitutional, thereby establishing, amidst considerable controversy, its role as arbiter of the Constitution.

There has been plenty of controversy over the years. Decisions have been criticized and reversed; justices have been pilloried for a variety of reasons; still, the ultimate authority of the court has never been seriously challenged, even as its interpretation of the Constitution has changed. However much strict constructionists may deplore the fact, we are a long way from 1787 now.

The actions of the court have always been, at least partially, a function of the character and beliefs of its members. It could not be otherwise; the justices are, after all, human. Total objectivity may be a goal, but it is virtually unachievable. Earlier generations were somehow able to accept this reality, and it was expected that presidents would appoint justices who shared their views and, yes, even their politics, though there have been many surprises over the years.

Most nominees sailed through a perfunctory confirmation process. Only 12 have been rejected in our history. It was not until 1955, with John Marshall Harlan II, that the practice of interrogating nominees began. Even then, it remained a fairly civil process until the grilling of Robert Bork in 1987 added a new verb to the language.

Since then, it has been the practice of inquiring senators to make windy speeches to the ever-present television cameras during their allotted time, and the practice of nominees to respond in empty platitudes.

Now we are repeating this silly ritual yet again. Ms. Kagan is going to be confirmed; the Democrats have the votes. We may expect that she generally shares the president's liberal views, however successfully she may have concealed them during her hearing.

The confirmation process has become nothing but a formalized kabuki dance, in which anyone but a convicted ax murderer will be successful. It is, as Hamlet put it about another subject, "full of sound and fury, signifying nothing."

It is all very well for the Senate to "advise and consent," as the Constitution requires, to the appointment of a justice, but the Constitution does not require a televised spectacle carefully choreographed to reveal nothing. Please, let's just get on with it.

Fred Wolferman lives in Southern Pines. Contact him by e-mail at fwolferman@sbcglobal.net.