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Supreme scrutiny

[TamilNet, Monday, 28 June 2010 08:14 No Comment]

ElenaKagan_01 Starting Monday, for nearly a week, Senate confirmation hearings on US Supreme Court nominee, Elena Kagan, the third potential woman justice in the highest court, will draw the attention of US television viewers. Analysts indicate Kagan’s tenure, a life time appointment, will mark a complete alignment between the liberal-conservative split in the supreme court and the Democrat-Republican party presidential appointments. Kagan, if appointed, will become, together with her liberal collegues Sotomayor, Ginsburg, and Bryer, the 4th appointee by a Democratic President.

The hearings will start with statements from committee members, introductions from Massachusetts Senators John Kerry, a Democrat, and Scott Brown, a Republican, of Kagan’s home state, and a statement from the nominee herself.

While criticisms remain that in the confirmation process judges routinely evade providing explicit answers to key questions that will expose the judge’s judicial philosophy, the nomination process is a welcoming occasion for public education about what the court does and whether the nominee possess attributes to carry out the judicial responsibilities well.

Democratic Senator Charles Schumer and Justice Committee chairman Patrick Leahy "The Supreme Court has near total discretion over the cases it hears and selects ones that have no easy answers. The one in 100 cases it hears mostly raise legal issues that have seriously baffled lower courts and produced substantial disagreement among them. Where, as is typical, substantial numbers of thoughtful judges have differed after giving it their best shot, real uncertainty exists as to what the law is," says Ayer, president of American Academy of Appellate lawyers.

Ayers adds: "With a keen mind must come the capacity to influence others but also humility and a willingness to seriously consider the perhaps divergent views of one’s colleagues. The court’s infallibility comes primarily from its ability to speak coherently as a collective body and only rarely from the unassailable correctness of any particular resolution. With that in mind, ideologues who come to the bench with a set agenda and others who think they have all the answers should be rejected at the outset."

John F. Manning, a professor at Harvard Law School, pointing to a law review article Kagan wrote earlier where she says, "[S]enators should not only ask about a nominee’s judicial philosophy in the abstract but also should insist "on seeing how theory works in practice by evoking a nominee’s comments on particular issues — involving privacy rights, free speech, race and gender discrimination, and so forth — that the Court regularly faces," comments that Kagan should change her mind on this view, and Manning argues "such an in-depth inquiry into a nominee’s views gravely threatens judicial independence. Justices have life tenure for a reason. And senators should, and undoubtedly will, ask Kagan about her judicial philosophy and her general approach to the Constitution.

"But demanding that a nominee testify about specific issues likely to come before the court shows a serious misunderstanding of what federal judges — including Supreme Court justices — do. At least since Marbury v. Madison, the federal courts in our constitutional system have played the role of dispute resolvers. Judges decide cases that have specific parties who make specific arguments about specific facts and laws," Manning adds in his Washington Post op-ed.

As an intellectual exercise in jurisprudence, George Will, a conservative columnist, asks, in another WP op-ed, the following constitutional questions, among others:

  • If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?

  • If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

  • In 1963, President John Kennedy said Congress should "make a commitment . . . to the proposition that race has no place in American life or law." Was he right?

For Sri Lanka’s readers, the following note from an independent observer, sums up the state of judiciary in Sri Lanka, and why citizens cannot rely on the judiciary for justice, equality, and redress for State violations.

Alan Keenan, then a Mellon Post-doctoral Fellow in Peace and Conflict Studies and a visiting assistant professor of political science at Bryn Mawr College, US has this to say in his summer 2005 essay in Boston Review on the conduct of Sri Lanka Supreme Court judges sitting to adjudicate the Bindinuwewa massacre:

    "…the principal responsibility for the massacres of course lies with the Sri Lankan state, and here, despite years of studying and living in Sri Lanka, I was in for an unexpected shock. Last August I attended one of the final Bindunuwewa appeals hearings. Held before a five-member bench of the supreme court, the justices—addressed by counsel as “your lordships” and adorned in dark red judicial robes and stiff white collars—had all the markings of decorum. At previous hearings earlier in the summer I had been disturbed by the apparent sympathy of most of the justices for the arguments of the lawyer for the second police officer convicted of murder. (The first had earlier been acquitted when the prosecution admitted that its evidence against him was insufficient.) But the final hearing was truly shocking. As the solicitor general repeatedly referred to the ways the Tamil inmates had been murdered—“beaten, stabbed, and some even roasted alive” he would say with a flourish—one of the justices began to mock his emphasis on the word “roasted.” This brought much laughter from the other justices and the defense lawyers, and even, most disturbingly, from the government lawyers themselves.

    This conduct was only the most grotesque example of the judges’ utter disdain for the crimes under consideration and for the state’s responsibility to determine the truth. The proceedings were filled with bad jokes and undignified behavior, lacked any sense of gravity of the case, and indicated no awareness of the state’s obligation to protect the inmates whatever their political sympathies.

    Sitting quietly and scribbling in my notebook, I felt overcome with the desire to pick up a gun and join the Tigers. I could only imagine how Sri Lankan Tamils would feel. But the only Tamil in the hearing room that day was my friend and sometime translator, who had lived virtually her entire life outside of Sri Lanka. Not one justice, not one lawyer, not one courtroom observer—as far as I could tell—was Tamil.

The Supreme Court is scheduled to begin its 2010-2011 term the same time it begins every session, on the first Monday of October.

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