Uterine Scalia

The process of judicial confirmation, notably including but not limited to the Supreme Court - or SCOTUS, in American affectionate vernacular, with the sordid undertones of Freenewspeak - has unquestionably being on a slough towards judicial Gomorrah, or at the very least utter delegitimisation, the institution now elevated as well as debased form of super-legislature with cynically black-garbed old men (and, since decades, women in the plural) issuing votes from increasingly extensive but haphazardly short-circuited life tenures. Now - with the sudden death of a conservative lion and very conscientious retirement of thoughtful and quasi-liberal scarecrow - the final blow against a supposed liberal lock, by the words of progressive scions utterly condemned and all but eradicated, was delivered with the expected but given the chronology unfathomed death of liberal hawk Ruth Bader Ginsburg, now the first woman Justice to serve out her life tenure, eleven score and eleven years after the first swearing in of this supreme paragon of the third branch, object of worldwide veneration and ofttimes, it seems, suspicion and condemnation (for all the unpronounced esteem held in the great Verfassungsgerichthof of Karlsruhe, I dare you to utter the name of one of its clerics in red, or any retired or dead president).

Somehow I expect the instinct of Trumpista and Senate Republicans to replace her before the election, as well as the reactions to this fact, were equally expected. None had thought, after the sordid affair of the Bork nomination, now immortalised in the questionable taste of fashioning into a verb (e.g. Lynch) as borking (small b) - one of the finest judicial minds in the republic, and among the poorest fitted to times then under then so immense division and lack of candour - that natural relations between the lawyer profession of those most supremely qualified, the legislative factions and presidents now utterly politicising appointments before the seats are cold, or even left vacant. 

Despite the best reactions, none could evade the fact they must have expected it, as well as the upheaval this death would work as a fulcrum for; even after the sordid promise framing the magic of Garland-traded-into-Gorsuch replacement for the Old Lion himself (now stoutly watching from above beside his thinner, but no less evocative, amusing or legendary contemporary) invoking an age-old precedent that no man, or even a glass-breaking woman, would be nominated during the final year of a presidency cannot have been expected from Ole' Mitch. This supposed precedent holds a long term of exercise, and been broken a myriad to spite that sweet face of tradition, and it remains to question whether a Clinton administration with an incoming - perhaps even elected - Republican Senate would have rushed to confirm one of her younger and more faithful (as well as fateful) scions, a pronounced Ruth the Second but younger, more eager in movements, lesser in bipartisanship and tact (and perhaps more colourful as well) or the balks of tradition would have held firm. Here, the traditionalists have all beyond abandoned them for the desired lock already met with calls to "expand" and "pack", without irony or scorn. (S)he who calls for the composition of a court to be altered in order to meet the desired outcome of its future decisions, and perhaps to change those of the past in violation of the stare decisis so recently praised, with selective memory. 

A lion with its prey... or is it bait? Although lauded, or booed, as a gate-breaking force, heralding an era of judicial "conservatism", he evidently often found himself a lone voice, a solid bulwark against a court rearing its head against the other branches. 

This lioness to replace a lioness, then, who is she? 

I feel I speak it in the loud. I resent(ed) the treatment of nominee Garland, for although this principle may have been invoked, it was a blockage so outrageously opportunistic, so ungraceful, so wishing to delay the selection into an administration the red majority may not even have wanted, that not a soul alive in the chamber could have thought it a stand on principle; and a foul, naked and short-sighted as the man himself disrobed (I mean Mitch; Merrick, I must admit, would be perhaps the fairest of The Nine, as far as drafting from their ranks to a pornographig piece, and not verdict, was wanted). This should also, with a twist of revulsion, be said of the treatment of eventually successful Judge Kavanaugh, but whereas Garland - here I fear(ed) my liberal credentials came into play, so I will do my best to disspell them with facts - bore his tribulations (smaller, admittedly, but more successful in their aim) with grace, and may yet see a position similar or yet grander, the most recently confirmed Justice broke the unspoken rule of non-partisanship nominally still observed by spouting his contempt and tears over the obvious, arguably ingallant and guerrilla-like, resistance from the blue. Perhaps these tribulations were, although beyond the emits of law and by the pedigree of trial-in-fact not so very convincing, self-imposed. And perhaps not so, or not remembered so in the faintest (is there a relevant difference here?). I am inclined, where such substantial doubts linger, be opposed to the maxim regarding Caesar's wife, and not subdivide my rulers as well as my friends between those never-ever, to occasionally, by one of poor standing, to those rife with stories and editorials and even accusations - I use the word in the strict, legal, proper sense - and judge before from bleating and a game of image well (or sordidly) played. At the same time, even my senses are tested, and the outcome is like to sordid (verb) the face of any man so scarred, even innocently (as he, lacking the ability to resurrect an expired matter or the likelihood of sentencing someone on the word of the accuser alone; both necessary things, I think). Be, or having been such as it may, the unscrupulous dialectic of Garland, Kavanaugh and "next contested nominee" - "contested" seeming fit to be struck well before unveiled - it is unlikely to repeat in the present, but the ease of a near-united bloc of Senate Republicans holding onto the majority (as they're likely to do for at least much of the next term, barring a blue upset in the Old Dixie they so tolerably resent, and have a record of nominees so grand and strong in wit and soul) to pass this one candidate in complete opposition, for a third time, will bear generational consequences.  

But generational consequences is the cry of the opposition, as it has been for at least a generation in aforementioned darling pieces of case law. The cry that abortion, secured not by Roe v. Wade but the much later and perhaps dreaded (given the name opposite the plaintiff) Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey, Democratic governor and father of supposed maverick molded by the beats of blue Washington into a pulp now certain to oppose, will eventually be prohibited - in the states selecting to prohibit or, more likely, restrict it severely by statute, and nowhere else - has rung, or rather been rung since the earlier, lapsed precedent was already contested and dry ink on the then-adolescent body of case law under the cloak of stare decisis dubbed "substantive due rights". In short, the idea - envisioned by Enlightenment thinkers, innovated by 20th century jurists, utterly rejected by a new generation and completely denied in the halls of the highest court in the land; Sweden's Högsta Domstolen, to be clear - that some space, outlined by the same jurists, mind you - is not fit for government overreach, or any reach at all. Overreach, in the spatial confines set by Griswold and then, in an arguably more public matter in Roe, was demarcated as the first and (partially) second trimesters, the quasi-medical terminology introduced by Justice Blackmun and trashed in his presence by Casey, where a re-vamped, pro-life quorum including only Republican appointees - including a fairly fresh Scalia - and Roe-bashing Justice White (soon to be succeeded by the RBG and now, I think, Judge Amy) reset its ambition not in favour of shredding its own work, but along the lines of a shared inherent logic of viability, hence demonstrating the power of both stare decisis and its obviously limited viability). This viability, equally and explicitly enshrined in the Swedish Abortion Act of 1974, stricter - in time, by far - than the 20-week ban Paul Ryan historically, for all its modesty, pushed through a Republican-dominated House, and which McConnell failed to push through the equally Republican-dominated Senate despite much-spoken of but reluctant support from Casey Jr. and two other from the blue team - but none of them named Doug Jones, as in the historic conjunctive Alabama Democrat, a regretful choice in the coming days . Few Alabama voters, after all, sport less conservative credentials than Swedish liberals, barring its very alive pentecostal roots (nor are they likely to forget the name of a child-eating predator when gazing down the ballot). 

"This nominee, if confirmed, will upend decades of progress", it has been said. But in order to ascertain the extent, quality and durability of this progress, the case aforementioned being exempli gratia as well as exempli bonia, likely and proven, we must look into the power of precedent so frequently discussed, including here across the pond, including dead cases, such as Roe v. Wade (or, dare I say it even beyond the rebuffing shield of parenthesis; Dred Scott v. Sandford, not Gloucestershire). In particular, how much does the conservative, if that is the proper term, amour reach across the blanket of settled cases? 

Well, not terribly far. Robert Bork, never-Justice Bork, famously stated in a talk with the great, both admirably and poorly aged Peter Robinson - depending upon how we judge the presence and prestige of the Hoover Institution; actually named from the then-Secretary Hoover, not the president and certainly not the (in Bork's tongue) sodomite-in-chief - that while this Supreme Court may err without damage well beyond its own pride and sense of infallibility, fairly well-kept I would say, the erring in constitutional cases justifies its revisiting them (here, not remarking let alone meditating on, as Scalia did, easing the amendment provision). But how easily, and does not this cheerful open-door policy undermine not only the security of pillars of case law called stare decisis et non quieta movere, but of the notion of a super-Senate or House of Lords, exclusive by one-digit numbers, serving life tenure? Well, the notion may also express, as voices of honesty as not a never-Justice may never speak, recognising actual realities. For if it errs, it must be free to err again. 

Already then a burdened man. The ghosts haunting Bork's service in his brief stints as solicitor-general, briefer as attorney-general, when plucked "[out] of the muck of Watergate" by Reagan, plucker and benefactor of legacies so different as Kennedy, O'Connor and Rehnquist, not to mention Scalia, he was already lost for the youth and relative virginity now sought. 

Thrust particularly into the figurative limelight has been her clerkship to Justice Scalia (if not, at least, to a Justice Bork) dubbed "lion of the law" and utterly "consequential" by the last two presidents, flailing to replace the two seats symbolically held by the lion(ess) of "left" and "right", respectively. If Trump succeeds where Obama could not, we must consider that a shift of the most noxious, or at least noxiously audacious character, has indeed been endured. But must the roots of a candidate's (presumed) selection govern with certainty over a future not yet written and sealed with the mark of the highest court of the land? History tells us it must not. For while aforementioned deviations of constitution and precedent have evidently occurred at least since Marbury v. Madison, the prime case to discuss if loyalty to the foundation - locked into a moment - would be taken seriously, 

The dimension of her sex, over-expanded and at the same time ignored compared to, say, former president Obama's delinquency of nominating women from religious minorities to the bench (no religious majority existing, one should add, although until Scalia's death the court was majority-Roman Catholic, the speedy approval of judge Garland having made it majority-Jewish, a "representation" for those thinking of numbers indeed irksome) would seemingly stand opposed to the presumption of wanting to re-demarcate, or shred, this precious (being no longer precocious) statement of now-all dead men. The willingness to reconsider is certainly riddled with hypocrisy on "both" aisles, as we would see, adding to the contempt likely felt by many watching the procedures. Senator Hirono's question, whether the nominee judge had not just been convicted, or indeed arraigned for certain felonies. Caesar's wife, or a Justice of this Supreme Court, must be above suspicion. And with suspicion being a dish freely distributed, at least from the mighty and their scions, one must plan for a court of fools or nobodies. Certainly nothing, from Mrs. Hirono's view, and that of her enemies, would serve the legislature better than bland rabid-passive dog tactics, biting whenever expecting to bite, else resting in sullen recognition. The questions imposed by other senators ranged form impressiveness and deference - not only those in red - to amazement, to shock, to resounding but polite rejection, earmarked for her nominators rather than her philosophy or judgment (mind you, senator Coons). In no way, it must be said, was this to be a repetition of the sordid affaire of 2016 or that of 2018. But behind this scenery remained a sordid division, with the only question open whether one of the oft-spoken liberal, decent or fateful Republicans (often made synonymous with women from the Northernmost states, a targeted but sometimes highly-regarded camp) would vote in the affirmative. Senatrix Collins, where are your manners? 

Finally, the mad - from the perspective of Congress - notion of cooperation and conjuncture must be discussed. Here, the trail of Scalia leave little doubt of creative and often evocative dissidence, something we may hold in esteem. In fact, most cases involve near-unanimity and some unlikely alliances and bridges, such as the lately and - in my Magna Carta-junking mind - cheerful minority in Gamble v. United States, where the Ruth the lioness joined hands, or at least paper and paragraph, with terrible Trumpista Gorsuch in seldom-praised defiance of the "dual sovereignty" doctrine used to undercut the ancient right of double jeopardy or, in the Roman law space where it is honoured in words if not exactly in practice, ne bis in idem. Mind you; a precedent-breaking matter, or restorative of long-trounced ancient civil liberty, but a great deal's worth regardless of the school or left-right dogma supposedly controlling the hand that wrote it. Here, not in the least, I would have liked to see his predecessor's hand, and had the case been decided with Amy nominated instead of Brett, whether only a two-thirds majority for the power of raw government could be accomplished. My compliments, in limbo, to her in case she would have thought it where the law takes you. The alternative, precedent or not, may be some very dark place indeed. 

The first African American justice to swear in a colleague, and the youngest woman appointed to the court at that. The proposition here, albeit the symbolism of Scalia would have been as impossible as that of her predecessor, the stout and infamous and ultimately short-lived RBG, the very image must be haunting for many, for a generation of decisions sure to change the very weight of the final court.

So what would be the conjuncture of this? In the mind and path of Scalia, overtly if not uncritically praised, her path would be one of judicial conservatism, indeed reactionarism, but the previously discussed term of "strict constructionism" must be held as a further juncture. The Bill of Rights must be upheld against efforts, not seldom by Democratic (as well as democratically selected, and unattending) politicians, to overreach into the private lives, and rule of law guarantees afforded citizens, residents and others alike since before their grandparents' birth (lest your first names are something as unlikely as, say, Harrison Ruffin, whose grandfather John was indeed a babe of neither speech nor privacy as the first ten amendments were being debated and ratified, a stirring fetus of indeed some protection as they were proposed, in late September 1789). This include, if the trail of Scalia is leading, the venerable defence of the right of confrontation, dialectically erected and, as the times may have required, near-butchered in Ohio v. Roberts, restored to former glory in Crawford v. Washington, and then again, if not finally, cropped in Michigan v. Bryant). It includes, more importantly or at least immediate to me, stern defence of flag-burners and mongers of pornographically violent video games so abhorred by "liberals" Stevens and Breyer, respectively, in Johnson v. Texas and Brown v. Entertainment Merchants Association. Here one must remark not only a bulwark of the individual and a deviation from near-Justice Bork, but also, it cannot be denied by any lover of the revolution and of Anglo-Saxon liberty, rigorous liberal credentials. Yes; even for someone who does not believe a right to abortion or marriage with anyone, although by god not several at once (the possible revisiting of Reynolds v. United States, one of my darling cases for slightly different reasons, indeed for its reasons rather than the outcome itself) existed as the liberal Amendment march began in the 1790s and was continued, belatedly but with renewed ambition and perhaps overreaching zeal, from the 1860s. Indeed, in defiance of governmental power, of "protection" bracket of politics, and in defence of this great beacon of liberal Enlightenment in its rigour, he merits the name of liberal. Well, to the question posed by the world and an uneasy minority in the senate; will she as well? 

Well, . Whether in time she may not only be indicted for sexual transgressions but indeed convicted and impeached, remains to be seen. In this dedication to tradition and precedent, at least, we ought - as we have, in fact, for nominees of the past 47 years, and must - allow this uterine Scalia a go. My greatest fear, as it is, would be a lack of ideological consistency which cheerfully marked her forbearer, or the courage of the woman previously incumbent in that seat. For whatever price the Democrats may exact in the next Congress, or the one after that, in the long tradition of borking (a verb so overused in practice it has lost its actual use), the institution may be of greater value than partisan impact. Lest we are, in this time of uneasiness for conventions (cheerfully, the great Malcom remarked the intersection - to coin a phrase - between furry conventions and the word chosen by the Democratic Socialists of America's recent excuse for a convention; indeed, also by the DNC and RNC joint travelers in buffoonery) better to avoid a "ConstCon", at almost any cost. For this, at least, I am a supreme conservative (if not exactly a reactionary) but one of taste and aim, rather than at conservation itself. That I leave to the judgment of judges and (dare I call them) Justices, now in full numbers, emerging from Iustitia's Minas Morgul. Thunder aims at the horizon, and soon the Nine will ride in full again.