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A Response to On the Manner of the Appointment of Justices to the Supreme Court: Revising Federalist No. 78.
In the sun, I see the nation I helped forge, and I feel joy and pride that it has endured and thrived. At night, when my lamp has burnt its oil and my spectacles are set away, I wonder whether, whatever state it has maintained, I would think no differently about our nation. Our nation lives, that much we can say, but do not the living most always believe that it could be worse? Indeed, the deluded believe they triumph, even when they cannot find water to bathe. Worse yet, do the living ever anticipate their exact death? These twelve score years have transformed me to a djinn, of the kind that frightened Descartes, but did that same djinn not grant him truth? Truthfully, I am not a demon; I wish harm on no creature. As in the myths of the Arabian Nights, wishes granted by djinn often end bitterly. But do not blame us. Our powers shall fulfill any desire, and if evil arises, that is innate in the desire.
As a djinn, I see much, even when I would rather not. I see that the nation is in danger, or so many think. The seams that once bound this great nation are slowly being picked and plucked. They fray; they snap; they come undone. What is left are pieces of fabric, when before we had a beautiful tapestry. Indeed, this is no secret to the world, and our enemies seek to accelerate our fall.
In the letter numbered ten, I discussed the ruinous problem of factions. There I discussed several ways to address factions. We could undercut liberty to eliminate factions, but that is a plague. We could homogenize the beliefs of the people, to smooth away any fissures, but that too is unwise: so long as we are not omniscient—and even I, the djinn, am not—diversity in belief is a strength, or at least a hedge. Moreover, the causes of faction are in the nature of the human condition—that we must remember.
What we require is a collective desire that the survival of the nation be privileged over the survival of any faction. When any faction privileges itself over the nation, we have in that faction another nation—one that competes for resources and minds and survival.
Our prior solution was to aim at achieving a large, variegated republic, which would pick fit representatives who would moderate the potential evils of the majority. I recall, and regret, saying that the only dangerous factions were those of the majority—minority factions, we claimed, would be disciplined by democracy. But the more complex our Republic became the more chances for minoritarian tyranny. That is an enigma: majorities may oppress, so we must hinder them through contraptions; but those contraptions can be manipulated by the few to oppress, so we must strike the contraptions. A vicious circle. But our desire for complexity endures.
Today it is true that the judiciary has become dangerous, or so many think. The judiciary can and has changed our polity in deep ways, all with the stroke of a pen. Our judges are insulated to protect us, but that same insulation can sear us. And so it has. Some say the solution is simply to wait and endure. Others, indeed our venerable former leaders, ask us to vote. As a djinn, I must ask: did that work before? Others say it is time for an expansion of the Court most high—but where does that end? Will we all be named Justice? Some cleverly ask for balancing the bench—with equal parts from each of the two aisles. But will such a court ever decide anything? Will they not predictably draw on any significant cause? Still others seek to mimic our sibling nations, where courts are panels drawn from a deep bench. But those panels often conflict without settling the law, and thus those nations have no high Court—they have bickering courts. Our Constitution saw this problem and vested judicial Power in one Supreme Court. In sum, we see many complex purported panaceas which are, in truth, all unable to fix the problem.
Here is another clever contraption: the crisscross. What if in choosing their Justice, the President must choose from the nearest competitor party? How do we divine such membership, a djinn must ask? The nominee must be a federal or state judge or politician who was elected as or appointed by the nearest party, never having partaken in the President’s party.
I fear this too shall not cure. But when we come across elegance, it is always something to admire. Here, there is a circuitous brilliance. If we have a cake that must be cut for two, how can we find fairness? One cuts, the other chooses. If we have a Court that must be neutral, how can we pick its members? The President picks, but only from their opponents.
Yet a country is not a cake.
In devising this proposal, its proponent tried to see as a cynic. Thinking deviously, they considered the possibility that each party might seek to plant double agents, thereby upsetting the design. The proponent stated that such attempts were unlikely to succeed; it would take too much guile, too much patience, with little expected reward—as it is unlikely for any particular person to become a Justice. Who would give up their life, having to smile and nod when surrounded by their miserable adversaries, for such a game of dice?
The proponent’s problem was in their limited view, thinking as one who wants to accomplish great political ends through disguise and chicanery. The skeptic should approach any issue from all perspectives. They should pester with all possible questions. I say let us be the clever child playing a frivolous boardgame, always thinking about how to win through cunning, even if it renders the game broken.
Now, we need not look far to see endurance in schemes. After my initial letters, Mssr. Poe and Mssr. Dumas spun tales of patience in the search for vengeance. In our current climate of rancor, many may be willing to forego their true selves for the chance to unleash such a devastating political surprise. I must admit that I have yearned for such a glorious moment and would do much to attain it. But even if such patience lives only in the realm of fiction, or in the minds of the petty, we overlook virtueless opportunism at our peril. What of the person who has no values at all, who seeks only fame, laurel, and title. They do not care about their camp; they shed that like a snake sheds their skin. Thus, when the President seeks one from the opposite camp, the opportunist propositions: “I have the title you desire; you confer the title I desire. I am ready to do your bidding.” Some may object that no jurist worth their salt would ever be so flippant about their views, but whoever said that the President must nominate a jurist of salt and not malleable clay? Still worse, what if Presidential candidates, on seeing their fortunes, sent forth youthful squires to seek trivial positions of power under the opponent’s label. Could not at least one of them become town sheriff in some unknown hamlet, allowing the President to thereafter nominate his puppet to the Court?
What also of nonpartisans: are they shut out of contention? Does that obstacle not do us harm, if our object is seeking neutrality? If our aim is a judiciary that is untethered to party, then one pool would be those who have always remained neutral. Some may inquire where such neutrals are to be found. There are many. Some of our states have nonpartisan judicial elections—how do those judges, neither appointed by a partisan, nor elected as a partisan, figure in the proponent’s proposal? If they are allowed, then will not the nonpartisan judiciaries be flooded with idealogues for the President to pick? If they are not allowed, are we not eliminating potentially good candidates from the pool? Are we not disadvantaging those states and localities from representation on our esteemed Court? Still worse, are we not incentivizing those states and localities to abandon their nonpartisan structures, in favor of the problematic partisan ones that we so grieve?
Does this not also exacerbate partisanship? The prestigious lawyers will pick their camps and never deviate, for fear of losing their rights to the high bench. Their acquaintances and acolytes—even if they never sniff the high court—will follow suit. Such cultish mentality is already standard fare, but do we not encourage it here? If what we seek is freedom from partisan rancor, why do we entrench it?
We risk undercutting freethinkers and freethinking. That is the heart of the judicial temperament, or so we thought. We desired to protect our rights from politics. It is known to craftsmen that if you carve a pillar from wood, you shall get a wooden pillar. If you choose judges from political camps, you will be blessed with partisan judges and a partisan judiciary. Reflexive partisanship—the coalescing around popular ideas—is the antithesis of freethinking.
Consider also that the proponent paid no mind to the lower courts and left the President free to appoint those jurists as they wish. One might think that because those jurists are the grand pool from which the high Court is chosen, a President would place moderates in the inferior courts. But the President may just as well appoint extremists to those lower courts, attempting to circumscribe the next opposing President’s choice. Whether such a condition will come to pass we cannot say, but schemes will abound.
In a similar vein, this proposal may entrench our two factions. The proponent’s proposal is devised to be open. The President must pick Justices from the party with the second most electoral votes. In the future that might be a different faction from the two most known today, at least as a matter of theory. But how does this bear out in practice? Will this not hinder partisan innovation? New parties, as foundlings, will be shut from the Court ‘til—and only if—they gain momentum. But until then, lawyers with high aspirations will stay away from embryonic parties.
When I used to play rounders, if I struck out, I would walk away with the bat. It was the only bat in the square, and the game would end. Ornery children have little regard for norms and reputation; they want victory—even if it is not sweet. Our politics are filled with ornery children of advanced age. Our proponent has infused complexity into selection, with the hope that it will bring moderation. But where there is complexity, there can also be stratagems. Knowing the crisscross rule, might Justices not strategically retire, to force an opposite choice on the President? That is a current worry that is not cured at all by the proponent’s proposal.
Moreover, this runs contrary to the popular will. People vote for one flag but are nevertheless given another. The high Court controls much of our lives—education, speech, arms, liberty, voting, even our loins. Can the citizenry ever control the judiciary?
Some will pretend that this is good—every election will contain bitter and sweet. While one faction gets the presidency, another will get the judiciary. No one must lose all. This is fallacious. Recall our blunder in thinking that a minority faction poses no peril. The proponent’s proposal greatly empowers minority factions, and improperly constituted minority factions may impose chaos, if not tyranny. The proponent lauds the promise of balance, but balance is not a good per se. We don’t desire balance of truth and falsity—we aspire only for truth. Just so, we don’t wish for balance between health and illness, between antidote and poison, or between friendship and animus. If the citizenry, through reason, banishes one party to minoritarian status, we cannot reward those losers. That is not wise, and that is not democracy.
Indeed, the President and Congress have stratagems too. What if the President refuses to choose, and thus appoints no Justices? What if Congress refuses to confirm them? Could we force such action by text or norm? We can try, but as Mssr. Melville taught, a Bartleby cannot be made to move. The end of the road may be bleak: our high Court may lose members and thereby lose function. Who is left to decide then? The inferior courts, which might by that time be filled with the most extreme partisans? We are then left with a fractured high Court, more partisan than before.
One more thought that strikes: if we must crisscross, why not double it? The President must pick an adversary from the second party who will pick an adversary Justice from the President’s party. It has a silliness, of course, but no more so than a single crisscrossing. At least it follows the people’s will—since two negatives cancel to a positive.
Forgive my insistence, because my memory is vast and crystalline, especially of my letters fifty-one and forty-seven. We invented, or at least instantiated, a brilliant mechanism—checks and balances. We knew the dangers of centralized power, especially when seized by faction, so we dispersed the power of government into three branches. But as shown, the proponent’s proposal may kill one: the most precious judiciary. In the proponent’s zeal to cure the high Court of the ills of faction, the proponent may have slayed the high Court itself. Our belief was that while the branches contain the dangers of power, they check the deleterious factions. We should not squander our fortune on unlikely dice.
I have now given many reasons to think that the proponent’s proposal will crack and perhaps ruin. But will the proponent not say that I have become like Pyrrho and Sextus Empiricus—skeptics so unbelieving that they could barely exist? Surely, we can rely on some decency, can we not? As a djinn, who has seen generations, I know the heart of man. I remain steadfast in my objections. But let me try a new approach: if the proposal’s success relies on the observation of norms, does it not beg the question? We are here because of scores of norm violations; there is no trust between the factions. If we thus assume decency, would we need the proponent’s proposal?
Here is one question that I cannot dispel: is the purpose of this proposal to obfuscate the operation and formation of the judiciary to the public? For, whether by intention or by accident, that is the result. That is not wise; that is not democracy. It is anathema to the public’s need—transparency in the operation of government affairs, not opacity of the machinations of the elites. As Brother Brandeis observed, “[s]unlight is said to be the best of disinfectants.” So too will the public’s illuminated understanding of the Court’s structure and formation result in a Court most acceptable to the people’s minds.
A few words about the revered independence of the judiciary: in what sense did this condition ever truly obtain? Is it a mirage that we have been running toward? In prior times, we had parties, but were they not differentiated by only slight variations in perspective? They were often of the same kin, with squabbles that boiled over. The so-called independent judiciary merely chose sides between brothers. (And when there were conflicts between truly varied factions, we always questioned the judiciary’s independence.) Today, we have a truly varied Republic, made of many tribes, tongues, and creeds. And interestingly, the judiciary now seems much more cultish.
In truth, we should understand that humans are human—and robes do not change that. Judges are not insulated from politics, especially when they were raised and educated within the aristocracy and chosen through politics. At best, they are a different type of politician. They did not give public speeches with bombast—but even that is changing. They need not worry about what the citizenry desires or approves. They are given long spells, so they may shape the law gently, with the full life of the nation in mind. They only decide whatever cases come to them, and they speak through law and reason. They have no enforcers, they rely on others to enact their will—they are “next to nothing,” posing the least peril. And so, they are only as strong as their reputation. The problem is not that judges are politicians—that is inescapable. The seeming problem is that they are, in the eyes of many, the wrong politicians. Many will say that is just politics. True, but how many politicians indefinitely remain such while unpopular? There is little opportunity for change—all the checks on the judiciary are fantasy. Such checks are contrary to the judiciary’s critical independence. But here we should seek balance. We should consider time bounds on their roles, allowing for periodic replenishment of the bench. That is no panacea to the factional ills that plague our nation, but neither is the judiciary. Mssr. Arrow taught us that there is no perfect in voting. Among many contraptions, our courts remain the least bad. We must recognize that all bread goes bad sometime. So too does new life keep the courts living.
However we march on, we must remember: our devotion to the nation as a whole is the only thing that will save our nation as a whole.
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