(HOST) With the confirmation hearings for Samual Alito to replace Sandra Day O’Connor just around the corner, Commetator Cheryl Hanna reflects upon the future of the United States Supreme Court.
(HANNA) Last November, a large piece of Vermont marble fell from atop the United States Supreme Court building and crashed onto the steps below. An accident? Perhaps. But it could also be the gods are trying to tell us something.
I used to think it would be exciting to choose a Supreme Court nominee — searching the country for the brightest legal minds.
But sadly, the nomination process has become so partisan,
and so predictable, that it’s no longer interesting.
Ever since President Reagan nominated Robert Bork, the Com-
mander and Chief always has to worry that his nominee could
get “Borked” — meaning to be vehementaly opposed by the other party. No more hard-line idealouges, no matter how much they’d liven up the court’s debate.
At the same time, a President must avoid being “Soutered” — meaning to be disappointed by a nominee he doesn’t know well and can’t be counted on to follow the party-line. Thus, it’s best
to appoint someone you can personally vouch for, which is what made Harriet Miers a particularly prudent choice, or so the President thought.
Yet, the president’s own party attacked Miers because she lacked a clear record on conservative issues and a degree from Harvard or Yale. So now Presidents have to worry that their nominees can also be “Miered” — meaning to be vehemntly attacked by their
And of course, there’s always the fear that a nominee could
be “Ginsburged” — meaning to be rejected for doing things
you should just say “No” to.
The term refers to Reagan nominee Douglas Ginsburg, a
former law professor whose nomination went down in flames
when National Public Radio’s Nina Totenburg reported that he
had smoked marijuana with some of his law students.
So, in order to avoid being “Borked,” “Soutered,” “Miered,” or “Ginsburged,” the President doesn’t have a lot of choice. The safest bet is to appoint someone like Roberts or Alito. A guy
who has know-it-all credentials, proven politics that are trust-
worthy without being extreme, and whose the kind of person
you’d invite to lunch, but not your New Year’s Eve party.
In other words: Boring.
It’s not that boring is necessarily bad from a purely legal
point of view. It’s just that the Court is becoming less repre-
sentative of America with each appointment. The Court seems increasingly out of touch with ordinary Americans, many of whom are losing faith in the Court’s legitimacy.
Maybe I’m wrong about the Court’s future, but listen to this: Just
before Halloween, during oral argument, a light bulb above the Supreme Court’s bench exploded, showering broken glass on the Justices. Chief Justice Roberts joked that it left the Court more in the dark than it was before.
Again I ask, an accident or a sign? You be the judge.
This is Cheryl Hanna.
Cheryl Hanna is a professor at Vermont Law School in South Royalton.