Monday, March 24, 2014

Making a Supreme Selection

Evelyn Baker Lang (Glenn Close): [Reviewing how she'd respond to a Senate question during a confirmation hearing] If you're Webster, the question is "Where do you stand on Roe v. Wade?" and the answer is "Judicial rulings shouldn't be based on personal ideology, mine or anyone else's." If you're Davies, the question is "How would you approach a D&X case?" because he's the drum banger on partial birth. And the answer is "I don't comment on hypotheticals." If you're Malkin, you're from Virginia, so you ask a de jure. I take you point by point from the doctor to the father to Casey to undue burden to equal protection back to Roe at which point you can't remember the question and I drink my water for a minute while you regroup.

I'd like to think — and I hope most Americans would like to think — that every White House treats its obligation to nominate justices to fill Supreme Court vacancies as a solemn and sacred responsibility, always aware of the historical significance and the future implications of every nomination — with little attention paid to the political consequences.

(The Georgetown Law Library's website perpetuates that noble image: "[T]he President has the power, by and with the advice and consent of the Senate, to appoint Judges of the Supreme Court. Since Supreme Court Justices are appointed for life, each nomination to the Supreme Court has a long–lasting influence on the Court and on the day–to–day life of every American.")

But the truth is that, like everything else that happens in Washington, the process is almost entirely political.

The episode of the West Wing that aired 10 years ago tonight, "The Supremes," was about that process.

It began with the death of a Supreme Court justice, and the liberal Bartlet White House had to select a replacement that could win the approval of the conservative majority in Congress. Initially, the president (Martin Sheen) was prepared to nominate a centrist (Robert Picardo), but he refused to take a position on any issue when he met with Bartlet.

His logic wasn't hard to understand. He said he didn't take sides until he had heard all the evidence in a particular case. He was preserving his initial neutrality. As a result, depending upon the facts, he might be on one side of an issue in one case and on the other side of the same issue in another.

That made him a bit too much of a wild card for Bartlet.

Ideologically, Bartlet would have preferred to nominate someone like the female judge (Glenn Close) who was asked in for an interview with White House staffers during their search.

She wowed the staffers who vetted her, too.

"I love her," Josh (Bradley Whitford) told speech writer Toby Ziegler (Richard Schiff) when they excused themselves to confer in private. "I love her mind. I love her shoes."

"Your work on the 14th Amendment in particular is the stuff that dreams were made of," gushed Toby when they were back in the room.

But she knew the conservatives in Congress would never approve her. Her record in general was too far to the left for them, but she was especially concerned about a heretofore hidden personal matter she felt certain would come out — that she had had an abortion when she was in law school.

She was content to be window dressing for whoever the eventual nominee turned out to be, but she knew that she could never be the choice.

The majority in Congress would prefer someone more like the conservative judge played by William Fichtner, but Bartlet couldn't do that.

(Personally, I always felt the scene in which Josh and Toby presented that particular name to Bartlet was one of the series' best. The camera never left the reception area. The president's secretary {Lily Tomlin} ushered Josh and Toby into the Oval Office, then went about her business while Vivaldi played on her radio. Behind the closed door, the president's anguished "No!" could be heard; his secretary calmly — and wordlessly — turned up the music on the radio and continued with her business.)

So there was an apparent impasse between the two branches of government, and it seemed that the oft–repeated caveat (in the West Wing universe) mdash; that the Supreme Court's destiny was to be centrist straight down the line — was coming true.

That's when Toby and Josh came up with a scheme, one that they hoped would breathe new life into a branch of government that was perceived as having grown stale and predictable with its overwhelming centrism.

(In reality, I am not so sure of that — but that underscores what is probably the hardest thing to keep in mind when you watch the West Wing. It was fiction, not documentary.)

Toby and Josh approached the chief justice (Milo O'Shea) about resigning, at which time, they said, the president would nominate Close to be the new chief justice and Fichtner to fill the associate justice vacancy.

The chief justice was intrigued and agreed to step down.

One of the things that I always appreciated about the West Wing was its ability to educate as it entertained. OK, I know that most of the people who watched the show probably forgot the history or social studies lesson that was taught before they went to bed, but I still appreciated the effort.

Having said that, though, I would be remiss if I didn't mention something that jumped out at me the first time I saw the episode. I guess my background in history and social studies made it inevitable that I would notice something that almost no one else would notice.

The West Wing writers usually were meticulous about their facts, but they really messed up in "The Supremes."

At the end of the episode, when Martin Sheen introduced the two Supreme Court nominees, he introduced Close's character as "the next chief justice of the Supreme Court." While, technically, it is true that the chief justice presides over the Supreme Court, the chief justice, as the highest–ranking judicial officer in the country, has the official title of Chief Justice of the United States.

You have just had your teachable moment for today.