Schumer, Trump and the problem of the Supreme Court

Charles Schumer now famously took after two Justices of the Supreme Court: "I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price...You won't know what hit you if you go ahead with these awful decisions."

We can put aside Brett Kavanaugh's character issues. In fact Neil Gorsuch's appointment was not legitimate.  If we read the Constitution fairly the President's nominee should have been considered on the merits by the Senate.  It was not and we are stuck with him for his presumably long and healthy life.   That is the dilemma we face.  And it is aggravated by the fact that ten states with a population of a million or less have twenty  Senators while California with 39 million has two.  

The problem did not "begin with Obama" chastising the Court about the Obamacare cases.  The independence that judges are entitled to is that they should be left alone to call balls and strikes based on the evidence before them.  But the United States Supreme Court does not decide red light green light cases.  It is a policy making body which turns to the resource of the somewhat obscure language of the Constitution - encrusted with thousands of pages of gloss largely of its own making.  So it makes decisions that are ultimately political, economic, or social ones.

The decisions are no longer made by the likes of men of the political and electoral world like Hugo Black, William O. Douglas, Robert Jackson, Frank Murphy and Earl Warren.  Instead we have the spawn of Harvard and Yale professors, vetted through the former justices for whom they clerked, who have been vetted ideologically.  Mostly by conservatives as it happens.

Such a body is entitled to no immunity from criticism.  For tactical reasons and the hope of persuasion we have come to rely upon the Department of Justice (expressing the policies of the sitting President) , interest group lobbying via amicus briefs, op-ed essays, etc.  But there is nothing wrong with massing crowds on the steps of the Supreme Court, or the Capitol across the street.

Where Charles Schumer went wrong - and here he tracked Donald Trump for the moment - is letting his temper or the roar of the crowd lead him to launch an ad hominem attack.   That is the forbidden line that was crossed.  Of course Trump - wielding the power of the presidency - was motivated by the corrupt desire to help a friend and avoid personal embarrassment in his attacks on Judge Amy Jackson and the jury foreperson in the Roger Stone trial.  For Schumer it was a lapse.  For Trump it was characteristic.

- GWC