The Charade of the Summer

The cast is ready, the stage is set and the curtain will rise in a couple of short weeks. It won't be "Must See TV" for any but the most hard-core political junkies. The media will predictably cherry-pick for supportive or destructive statements by the Senators or the nominee. Each day's transcripts will be pored over trying to dig out the faux pas, the titillation, the mis-statement or the rash disclosure. Little will come of it all and in the end the Supreme Court will remain a 4-4-1 balance much as it is currently. Four liberals, four conservatives and one swing vote who is sort of but not quite one or the other on any given day.

Yet, there is something there that frankly bothers me. The Bamster said it himself and inadvertently left one of the few traces of what he really thinks during his tenure at University of Chicago. Justice Sotomayor said it during her run-up to confirmation and here it is again with Elena Kagan:

Justice Isn't Blind, Just Nearsighted

Here's the problem:

Justice Marshall, she wrote admiringly, "allowed his personal experiences and the knowledge of suffering and deprivation gained from those experiences, to guide him." In his view, she explained, Constitutional interpretation demanded that the courts "show a special solicitude for the despised and disadvantaged . . . and however much some recent Justices have sniped at that vision, it remains a thing of glory."

I wondered on first reading that such an outrageous statement should come from that early Chief Justice John Marshall, but on revisitation of Ms Kagan's comment I see that it was the much more recent Justice Thurgood Marshall speaking.

The Constitution is supposedly the supreme law of the land and we as a nation are supposed to be one governed by the rule of law rather than the rule of man. In the most simple format that principle is the foundation of the British common law, that the king is no more priviliged before the bar of justice than the lowest serf.

Apparently the first African-American justice on the court felt that suffering and deprivation bestowed some level of privilege in the court. And, now Ms Kagan seems to be saying that if you can demonstrate that you have been "despised and disadvantaged" you can get a leg-up in terms of consideration by her application of the law.

Just as having been fortunate shouldn't free you from the law, so neither should being disadvantaged give you preference.

If Justices of our Supreme Court can't accept that foundational position something is very wrong here.