Cold Cases and Warm Bodies in the Supreme Court

Approximate Reading Time: 8 minutes

The current ordeal of the nominee for the seat on the U.S. Supreme Judicial Court vacated on the retirement of Justice Anthony Kennedy highlights, among other things, two contradictory tendencies among the public. We tend to accept fully, or utterly reject, and purely at face value allegations of extreme behavior. What gets our juices flowing are cases of murder or even significant bodily harm, kidnapping, and, of course, sexual misconduct. At the same time, we have a spot in our hearts, perhaps softened and predisposed by all those juices, for seeing justice done however long it takes in the special instance of what are called in police jargon “cold cases.” The only matters that compare for compelling sympathy are cases that later prove to have indicted, and usually punished, the wrong person. But these latter instances, both unsolved crimes and crimes erroneously attributed to an innocent, are related if merely by the power they have to excite our emotional involvement even after protracted periods of time. We even can work up a compulsion for cases involving offenses so ancient they are history, and all the parties involved long dead, if not almost altogether forgotten. Nothing stirs certain of us like the words, “disinter,” or “exhume.” You’d think we had a scholarly love both for Latin and rotting flesh.

Among the genre programming that claims sufficient following there is always current a choice of shows, both on network television and cable or streaming. We have the fictions of the very popular series, which ran for a respectable seven years, called, simply, “Cold Case.” What underscores the avidity for that series is that all the cases featured were fictional. On the other hand, there is equivalent enthusiasm for a series which features what are purported to be real cases, in which we are to suppose there is the satisfaction of seeing in the end the meting out of “Cold Justice.” In the latter a real-life former prosecutor and a crime scene investigator team up to crack such cases across the country.

There have also been myriad mini-series and podcasts devoted to examining afresh baffling or vexing seeming (or actual) crimes in which, originally at the time of occurrence, there was either a successful conviction, or the mystery of a total lack of an indictable offender. The more popular of these “reality-based” extended inquiries resulted in concluded cases being overturned and retried, or in the case of utter failure a latter-day confession by the perpetrator. Receiving equal acclaim have been a certain number of shows that incorporated fictionalized or speculative aspects of exposition of a real case. The most engaging of these kinds of programming, in my personal experience, have included the documentary mini-series “The Jinx” (the case of admitted murderer Robert Durst), the documentary podcast (that spawned a powerful genre of such shows, and the establishment of a production company devoted to producing them), “Serial” (involving the case of an accused and convicted Adnan Syed, who had his case re-opened 16 years later, in part because of this inquiry, after being sentenced for the crime in 2000—as recently as five days ago, incidentally, the State of Maryland, which is running out of appeals of the decision to retry Syed, appealed, probably as a last resort, to the highest court in that state… as they say, stay tuned, and back to my regular programming).

Suffice it to say there is an ongoing hunger for stories of injustice, of justice forestalled or upended or perverted. Generally, we find these compelling and engaging, and a test of our willingness to keep an open mind, or at least to examine more closely how we arrive at the conclusions and convictions we arrive at in the light of what is sometimes conclusive evidence—when sometimes other factors we can’t quite identify compel us to arrive at a contradictory “verdict” in our minds despite that evidence. When the evidence is inconclusive or fragmentary or, seemingly, non-existent, we are thrown back on our entire internal system of beliefs, biases, and what we persist in calling logic, no matter what part of the brain is involved, acquired over a lifetime of childhood development and all of our experience.

We long for evidence of the successful pursuit of justice. We plunge into the fascination of cases involving the extremities of behavior, especially when there seems to be no satisfaction of that longing. We put aside our repugnance, if not outright horror, of certain acts, in the interests, we say, of truth. And we endorse, at least as passive witnesses, if not outright bystanders with no other skin in a game but our shared skin as human beings, the additional energies, if not the material expense of time and cash in pursuing what we insist on calling the truth. We do. Unless some other order of value, some objective conforming to that order and that value, is at stake. Then, it would seem not only are bets off, we don’t care to venture into the casino altogether to watch other players confront the stakes. It can be a complex and complicated business, this business of who did what to whom, and what’s it worth, if anything, to find out.

And so now, let us consider the even more convoluted contradictions of the matter before the Senate that is hogging the headlines, concerning Judge Kavanaugh.

Stating the obvious, apparently unsubstantiated allegations about sexual misconduct by alpha individuals – mostly men, but let’s not introduce the specter of gender bias – in our society have been enough to bring down politicians, both in office and seeking them. Enough to bring down very powerful media executives and on-air talent. Enough to bring down star athletes, as well as athletic management of professional teams and the de facto equivalent, major college sport organizations.

What they are not sufficient to derail, never mind to oust from any current office, are the ambitions of men who are nominated for one of nine seats as an Associate Justice of the Supreme Court. Other misdeeds, or so they were positioned, have been sufficient to scotch a nomination. Even Abe Fortas, a sitting Associate Justice nominated to replace the retiring Chief Justice (and the first sitting Supreme Court justice to be called in to testify at his own confirmation hearing) failed in his attempt to be seated, largely because of unpaid political debts by President Johnson owed to Republican senators who elected to find that the stipend Justice Fortas received from a university to teach a course at American University during the summer recess of the Court was sufficient sign of moral unfitness that they filibustered the confirmation process into extinction. The upshot was that Justice Fortas chose to resign from the Supreme Court altogether.

And now, of course, it should be mentioned as an aside, as well as ironic counterpoint to latter day machinations, the filibuster is dead as a political weapon. The Democrats in the Senate as it is currently constituted are sufficient in number and temperament to have put an end to the nomination of Brett Kavanaugh long since, and without an ounce of painful personal discomfiture for anyone.

Though I don’t mean to turn this into a discussion about the range of historical precedents for finding reasons to disqualify candidates on what, after all, were strictly political grounds, there have not been many instances, as I started off by saying, where an alleged act of sexual impropriety lost a nominee a seat on the highest court in the land. A quick review online reveals none. There has been at least one instance of a state District Court justice losing his seat (and not a lifetime appointment at that) because of sexual improprieties, but not without his stepping down while also denying the allegations against him. Not to mention U.S. Appeals Court justices (the most recent one being the infamous Alex Kozinski, who sat very close to his colleague on that bench in the Ninth Circuit, that is to say the aforementioned Brett Kavanaugh—but Justice Kozinski got away clean by the expedient of retiring, though at the youngish age for senior judges of 67).

To be fair, Judge Kavanaugh is in the process of being prepped for being pilloried in the court of public opinion, not to mention the Senate Judiciary Committee if the Democrats in the minority can somehow get their way, for activities in which he is accused of participating when he was still a teen-ager. He was in prep school as a senior of 17 in one instance, and in a newly revealed alleged incident, it was a year later, his freshman year at Yale College.

By any definition, these incidents, accepting the premise they may have occurred, are cold cases, especially in view that the warm bodies involved are still among us, still vital, still relatively young, though the occurrence of these alleged incidents was at a time that the bodies were not just warm, but in the full flower of youth—which seems to have a fluid meaning and pertinence depending on whose opinion you ask about the allegations. Yet, given our penchant for deep interest in such cases – whence the course of justice, indeed? – there is a divide as to whether there should be any intensive effort to examine either case, but especially that of the first allegation involving the sexual assault of Dr. Ford at a prep school party, for further evidence or corroboration beyond that of the principals in this drama. Indeed, it’s clear that for the Republicans in the hearing room, and in Greater Washington DC, and in suburban Connecticut, and around the country, there has already been too much allowance, and the chance being given to Dr. Ford to submit herself to examination and inquiry (let us not call it interrogation, even though the Republican majority of the Senate Judiciary Committee insists that lawyers appointed by them be permitted to pose the questions to those testifying) is sufficient effort, energy and expense. And not because of the nature of the offense, but because of, well, that’s the question isn’t it?

If it were a Hollywood mogul, it’s easy. Guilty as charged. And if not guilty, though Mr. Harvey Weinstein, in fact, will have to face the court, so let’s consider, ahem, another example. Well, if it were a U.S. Senator or a member of the House of Representatives, either of whom will be up for re-election in short enough order, and either of whom could be made the focus of an ethics inquiry by the body on which they sit as a member (but why bother with such a nasty and un-collegial business, when a man’s honor can be invoked and he can be called upon, in private, to do the right thing?), he would do the honorable thing and simply step down, by way of tacit admission no matter what discrepant verbiage actually issues from his lips, which it inevitably will. But this is a sitting judge, who will have to suffer the bitter deprivations of continuing in his seat on the bench of one of the second highest courts of the entire nation, continuing to wield power and influence on the laws of the land, rather than assume an even higher agency holding a judicial position for life.

Is this a matter or justice? Is this a matter of life and limb? Nah. Apparently not, at worst it seems to be a matter of teenage hanky panky and indiscretion. It’s merely a matter of the reputation and word of a woman. How many times must we be taught what that’s worth, at least in certain arenas?

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2 thoughts on “
Cold Cases and Warm Bodies in the Supreme Court

  1. And, perhaps, a matter that being seated on the highest court of the land might reasonably require being held to a higher standard..is not the highest. And that youthful indiscretions might, in fact, indicate a character flaw carried through to adulthood…oh yes, and there is the issue of criminal acts committed, of course, also…

    • Yes, of course. But I have to ask, concerning your hypothetical (you did say “perhaps”), higher standard than what? I’m not even sure there is a requirement that a judge be a lawyer. Not that I’m suggesting there should be such. [As I understand it, there is no such requirement of many federal judgeships: district, circuit, or the Supremes]. That being the case, it seems the standards for a judge might as well be those for any of us as decent citizens. And vice versa. If you’re a rat, so to speak, you shouldn’t be a judge. But that doesn’t speak to your rights, as a rat, to carry on your life, so long, presumably, as you do not run afoul of the law. And if you don’t, also presumably, you are not to be denied the right to due process, or to be protected as all other citizens are by those sworn to do so.

      I think, instead, the imposition on those who aspire, and are put up for consideration, to the highest courts in the land (and not just the Supreme Court; which leaves open the question, aside from whether someone like Brett K. is liable to prosecution should he prove to have broken the law in some way, and whatever proceeds from such a liability, whether Brett K., being denied his aspiration and rejected for confirmation should be left to continue to sit on the Appeals bench on which he now sits unmolested.

      What gets lost in all the sturm und drang (including the additional acts added to the drama since my posting and your comment) is the simple question of his fitness for the post. The conditions of his potential tenure, especially that of being for life, only heighten the scrutiny. There’s little to do if there is a mistake (though there are things that can be done; the Constitution is not a perfect document, even now, and especially not out of the box, but it does make provision for the removal of even a Supreme Court justice… it would be interesting to witness that attempt at a precedent—impeachment has always been possible, but only one SC justice has been subject to it, and he was acquitted in the Senate, and that was in 1804). I, for one, should Brett K still be confirmed, would love to see his sorry ass impeached and removed.

      So, to respond to your “perhaps,” I’d say no, there is no higher standard, and I don’t know of anyone, save for your average Republican, who, I just read, in one poll taken yesterday, a day after Brett K’s performance, have indicated that even with a history of sexual misconduct he (or inferentially she) does not see that as cause for not being confirmed to a seat on the Supremes, who believes that there shouldn’t be a more intense, vigorous, and extensive effort at scrutiny in adhering to whatever the standard is.

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