Jottings - Slice of life - 421 ( The senate hearings for the Supreme court appointment - a few personal thoughts)

(In writing this piece, I am not swayed by any party affiliation. I love the process of senate hearings to confirm the supreme court justice, and how a nominee must face the barrage of questions on every major decision made during their career, with confidence, legal finesse, and expertise.  It's a grueling four-day process with short breaks in-between. Even a single inadvertent verbal slip on any one of the answers to the multitude of questions raised by the senators, however intimidating they may be,  could become national news and jeopardize the entire confirmation process. In my opinion, anyone who gets to sit in the nominee’s chair, whatever the outcome may be, deserves our applause and awe. They bring a lifelong worth of commitment, dedication, passion, and in-depth expertise to the administration of justice. That there may be an element of political partisanship in the nomination itself, in no way diminishes the quality and eligibility of the nominees. I request my readers to read the following paragraphs in this spirit.) 

The senate hearings of Judge Kavanaugh held in September 2018 was colored by aspersions on his character based on an alleged sexual indiscretion committed in a party held decades ago when the judge was a handsome, young adult. The ghosts of that incident haunted all the four days of the Supreme court confirmation hearing. It bristled with insinuations, ugly jibes, and a downright assassination of Kavanaugh's character; and had less substantive conversations about the jurisprudential capacity of the man. It was hard to watch Kavanaugh defend himself during those hearing for a misdemeanor that may have happened in the exuberance of youth.  He was visibly squirming in his seat, head down, mumbling, and wished he were elsewhere than where he was.  The entire proceedings seemed vindictive, and suspicious and intolerant of the incumbent president’s choice. In simple words, the confirmation hearings of Justice Kavanaugh did not look anything resembling the solemnity, gravitas, and intellectual rigor required to confirm a justice of the US supreme court. Eventually, despite severe opposition, Justice Kavanaugh was confirmed. But none who had the chance to watch the proceedings on television ( even partially) can quite shirk away from the feeling of distaste it left in us.

But this time, with Judge Amy Coney Barrett’s hearings, it is a different ball game altogether. Here is a lady with impeccable credentials: A blemish-less personal life, a Rhodes scholar in English, an outstanding student of the law from Notre dame, clerked under Justice Scalia for two crucial years and absorbed the master’s unparalleled interpretation of the constitution, followed by two decades of successful legal practice with as many years in the academia at her alma later and other top universities, recipient of the distinguished professor of the year award thrice at Notre dame, nominated to the seventh circuit in 2017 as Judge, mother of seven children ( two of whom are adopted from Haiti), a devout catholic, and above all an expert in Constitutional law.  Except for the fact, that the ruling party hurried up the confirmation hearings, there is nothing wrong in elevating this capable lady to the Supreme court.

For the last three days, in the evenings, I have been watching the recordings of the senate hearings. The appointment of the supreme court justice is a lifetime affair and the apotheosis of a legal career. What that means is that during the hearings the nominee’s entire life and career will come under scrutiny. Every decision, each opinion, all the articles ever published can be brought to question and discussion. The questions are asked by senators from both parties who understand law-most of them are lawyers themselves; and the attempt is to unsettle the nominee and provoke them to contradict their stated positions of law or say something that can be construed as an extreme position. Therefore, every word spoken by Justice Barrett has to be tightly measured and uttered. How magnificently she has conducted herself over the last couple of days. While the senators asking the questions sat deluged by a mountain of papers, books, and notes from which they searched and picked their points, Justice Barrett’s table is empty but for a small unwritten notebook and a pencil beside it. Her rapt attention and unshaken demeanor, her measured answers with an unbelievable memory of cases, judgments, opinions, and research papers, is a testimony to the quality of her legal mind, poise, and her meticulous preparation for the hearings themselves. It is not an easy thing to do.  

It is interesting that the main objection to Justice Barrett’s nomination seems to be that she is a “textualist” or an “originalist," when it comes to interpreting the law, especially the constitution. Such a position in its strict sense indicates that she will interpret the law by the letter, and not in the spirit, it was originally written. This problem has been there ever since mankind started making laws.  Should laws be rigid and interpreted only in the context it is originally conceived, or does it require periodical reinterpretation in the light of evolving social circumstances and realities? One can argue on both sides. The textualist will argue that a law is meant to remain a firm anchor in the turbulent and ever-changing landscape of social conditions and that it doesn’t remain a law anymore if it is frequently reinterpreted to suit the needs of the moment, therefore —  the textualists say — it is best to stick to what the original authors had in mind when they drafted the law;  and the opposing view would be that any law that doesn’t accommodate the spirit and the living realities of the times is bound to exacerbate inequalities and invalidate the very purpose for which the laws were originally framed.  For instance, the US constitution was written in 1787. Since then 33 amendments have been proposed by Congress, out of which only 27 have been ratified. (  In contrast, In seventy-odd years, India has amended its constitution 104 times). And all these amendments have addressed the altered circumstances of the times, but they haven’t touched the basic essence of the constitution in any manner.  Issues like civil rights, abortion rights, voting privileges, equality, and many other aspects of society are not the same as they were when the constitution was written. So naturally, the question arises, if the law should also not keep up with the times, and if yes, how much? This is the contentious point between the two parties on how much? Textualists believe that by yielding a little ground, more will be demanded; and the opposing ideology believes that the needle must be moved along with the times. In modern US history, Justice Scalia and Justice Ginsberg represented these contrasting views. Scalia was a textualist, and Ginsburg an evolving interpreter of the law.

Listening to the constant use of the words textualist and originalist during the hearings, I was struck by how the ancient Indian philosophers, especially the Vedantists, realized long ago that all laws are of two kinds: Shruti and Smriti.  Shruti represented all those human values and verified truths that are universal and cannot change with time, and Smritis are temporal laws that scaffold and protect the shrutis ( eternal verities) in any given period of human history.  Smriti has to change as the human condition changes, otherwise, the truth will be caught up in hollow customs that will have no meaning. This is a wonderful understanding of jurisprudence in general. As a supreme court justice, it is the duty of the incumbent to preserve the shruti ( essential truths) in the changing conditions ( smritis) outside. Therefore one has to be, both a textualist and an evolving interpreter of the law. It is not either this side or that. One of the first books on philosophy I remember reading was the collection of lectures by Swami Ranganathananda, which he so thoughtfully named “ Eternal values for a changing society”. That's exactly what justice and law are all about. How do we find that golden mean to preserve our liberties and rights and also allow for changing tastes and conditions? 

The Senate hearing will conclude tomorrow, and we will know if Justice Barrett is confirmed or not. In all likelihood, she will be.

God bless…

yours in mortality,

Bala