Vail Daily letter: The danger of Trump nominees
October 28, 2016
Dear Kaye (Ferry, Valley Voices, Oct. 16),
You are correct that the Supreme Court is (your words) "the biggest issue" in the current presidential campaign. I respectfully submit that everything else in your column was just wrong.
About 30 days before Justice Antonin Scalia died, Chief Justice John Roberts gave a talk to a bar group in which he observed that recent presidential nominations to the Supreme Court were confirmed by Senate votes strictly along party lines. Historically, he observed, that prior to the flood of partisan venom that is currently drowning Washington, a nominee's scholarly legal intellect and good character were the only issues for consideration by the Senate. Ruth Bader Ginsburg, for example, was confirmed back in 1992 by a vote of 98-2. Mr. Chief Justice Roberts, in his talk, was deeply concerned about the politicization of "his" court. It should be noted that the Chief Justice (a Republican nominee) wrote for the 5-4 majority in upholding the constitutionality of the Affordable Care Act in 2012 (National Federation of Independent Business v. Sibelius). I carefully read all 100 pages of that opinion, in which the chief justice meticulously threaded through the legislation and, after rigorous analysis, concluded that the individual mandate feature of the law was within Congress' constitutional taxing authority. It was a nice piece of work by a Republican who had to rule on legislation that was passed solely on Democratic votes in the Congress. I suggest that you might consider reading this opinion. In the words of the now-famous Mr. Kahn who spoke at the Democratic convention, "I will lend you my copy."
The point is that Supreme Court justices should be appointed because they are legal intellectuals with a drive and determination to arrive at a correct result (a difficult task in most circumstances) in matters that frequently affect our society in gravely consequential ways. It's a heavy responsibility. We should not try to speculate on how a nominee of your party's choosing will rule on this issue or that, which was emblematic of your column. Let me demonstrate just how dangerous that is, as I point out the post-appointment changes that took place among a few of the giants (repeat, giants!) that have occupied the high bench.
• Felix Frankfurter, who immigrated to our country at age 12 and speaking not a word of English, was one of the nation's leading liberals and ended up as a fierce conservative. Roosevelt appointed him on the theory that he would be helpful in upholding New Deal legislation, but after a few adverse rulings, Roosevelt no longer invited Justice Frankfurter to the weekly White House poker game.
• Hugo Black, a Ku Klux Klansman who would never be nominated today, turned out to be an absolutist advocate for free speech and civil rights.
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• William O. Douglas was essentially a conservative Western cowboy who used his position on the court to expand our personal liberties that were implicit in the constitution, though not necessarily enumerated therein. For example, he overturned an arcane Connecticut law that made it a criminal offense to employ anything that would prevent conception. Thanks to Justice Douglas, the privacy of our bedrooms is inviolable.
So, Kaye, I trust you now understand why it is a dangerous practice to select justices for the Supreme Court on their political inclinations. And given Donald Trump's complete unfitness for the Oval Office, his nominees (if he had the chance to select any) would be disastrous and, as Mr. Trump has been doing recently, would most likely continue to undermine the basic underpinnings of our nation.
Oh, and Kaye, while we're on the subject of Donald Trump, let's go back to the years when you and I had nearby lockers in the Vail ski instructors' locker room. That locker room was a unisex facility and, as a result, the Vail employees' manual admonished that "lewd behavior" would not be tolerated. Not only is Donald Trump unfit for the White House, but he would never be allowed into the ski instructors' locker room!
David M. Stern
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