Wednesday, February 01, 2006

Fairness

A lot was said about how "fair" Samuel Alito would be as a Supreme Court Justice during the hearings and debates before his actual confirmation yesterday (and likewise before him for Justice Roberts and the theoretical Justice Harriet Miers before she withdrew her name from consideration). Republicans accused Democrats of wanting a Justice who would vote according to their partisan agenda. Clearly, such a judge would not be a "fair" Justice. Likewise, Democrats argued that a right-wing conservative would have an "agenda" to turn the country further to the right, and would overturn freedoms currently held dear to many Americans. Certainly, this would not be a "fair" Justice, either.

In the midst of it all, and no doubt completely unnoticed by the politicians, I made a couple of statements regarding the impossibility of true "Impartiality." While these blog posts were certainly of no importance whatsoever to the Senators and others who debated these issues, I sought to encourage people to be open and honest about whatever prejudices they may have, going under the assumption that all human beings operate under such prejudices. The argument I used was that only as people are aware of their own prejudices can they seek to overcome them.

Today, Judge Alito is now Justice Alito, and perhaps the dust can settle somewhat. Time will tell how truly "fair" Justice Alito will be, and no doubt his rulings will be debated for years to come. I thought it appropriate to put a coda on this time by reflecting on the votes for all Supreme Court Nominees since 1970 (not including those who were never voted on, such as Miers). Most of these figures come most immediately from Wikipedia (other figures are linked where appropriate), but there are links from there to more reliable source material for each individual vote.
Harold Carswell (rejected) - 45 “yes”/51 “no”
Harry Blackmun - Unanimous "yes"
Powell - 89 "yes" - 1 "no"
Rehnquist - 68 "yes/26 "no" for original appointment; 65 “yes”/33 “no” for Chief Justice
Stevens - Unanimous “yes”
O’Connor - Unanimous “yes”
Scalia - Unanimous “yes”
Robert Bork (rejected) - 42 “yes”/58 “no”
Kennedy - Unanimous “yes”
Souter - 90 “yes”/9 “no”
Thomas - 52 “yes”/48 “no”
Ginsburg - 97 “yes”/3 “no”
Breyer - 87 “yes”/9 “no”
Roberts - 78 “yes”/22 “no”
Alito - 58 "yes"/42 "no"
Leaving aside Justices Alito, Thomas and the two rejected nominees to the Supreme Court, it's clear that Justices who make it to the court generally have broad support in the Senate vote. Many were unanimous (including Justices from both sides of the political spectrum, interestingly enough), and most had well above the 60-vote threshold that is currently required to overturn a filibuster (not that this is necessarily relevant. After all, although Alito had fewer than 60 "yes" votes, there were enough votes to overturn John Kerry's filibuster attempt).

Of those who remain, there's Alito, Thomas (who admittedly also had a highly publicized sexual harrassment scandal bringing his votes down, besides his right-wing leanings), and the two nominees who didn't make it. It's interesting to me that even the two nominees who were rejected were rejected by fairly narrow margins. In fact, most rejected nominees historically have gone down in a reasonably close vote, with only one nominee ever going down with a vote totaling less than 40% of those cast, by my math (Alexander Wolcott, in 1811). This seems to me to be because there is a widespread feeling in the Senate to go with whoever the President chooses for the Supreme Court, granting him the "benefit of the doubt." To put it another way, the burden of proof seems to be to prove a Justice unworthy to serve on the court. The assumption seems to be that, since the President chose the person, the person must be qualified to serve on the court.

I would submit that such an assumption is unfounded, and is a failing of our current system for selecting Justices to the highest court in our nation. If we really care about fairness, the standard for a person getting to this court should be very high. People from both sides of the political spectrum should be able to reach widespread agreement that a Justice will do everything in his/her power to be fair. I would suggest that Justices ought to be confirmed by a two-thirds majority, although I confess that this is a somewhat arbitrary number.

Still, a two-thirds majority is clearly not too high a standard to set. Of the 9 Justices now on the court, three were voted in unanimously. Both of the post-1970 Justices selected after rejected nominees were approved unanimously. Seven of our current Justices made it to the court with greater than a two-thirds majority. These are truly bipartisan votes. Clearly, a diverse range of both Republicans and Democrats trusted these justices to be as fair as possible. Why is it too much to ask that all of our Supreme Court Justices meet this standard? Do we really want to say that a simple majority of politicians, almost entirely from the same political party, is a sufficient standard of fairness?

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