"OCTOGENARIAN," BASEBALL, AND "CUSSING THE COURT"

Senator Kennedy took Bill Pryor to task today, in his confirmation hearings for a seat on the 11th Circuit (accessible here, link via Howard Bashman), for arguing in public that some controversial issue shouldn't be decided by "octogenarians in robes," or something like that. I don't have the transcript, but after some hemming and hawing on whether the statement was merely "heated" or also an "inappropriate" way of referring to the Supreme Court, Senator Kennedy extracted an admission from Pryor that the statement was "inappropriate."

As an isolated event, I find this exchange troubling. Court-bashing has a long history in American politics. In a fantastic 1936 article in the Annals of the American Academy of Political and Social Science ("The Supreme Court: Arbiter and Target"), Thomas Reed argued that "cussing" the court serves several functions and is as a part of American life as "cussing" umpires at a baseball game. Here are some of his words, which are worth quoting in full:

Berated first by one side and then by the other, never free from criticism, accused of usurping power and sabotaging the Constitution on repeated occasions, its pronouncements (in the Dred Scott case at least) made the theme of battle -- the Supreme Court has gone steadily on increasing its authority, its influence, and its hold upon the affections of the American people at large. The fact that we throw pop-bottles at the umpire does not mean that we want to abolish umpires. In fact, in my lifetime I have seen the number of umpires increase from one to three. And the day after a riot in which the cry "Kill the umpire!" has split the heavens, the man in the blue cap says "You're out!" just as authoritatively as he did the day before.

Reed continues a little farther down:

And since the Supreme Court has on the whole gone serenely on its way deciding questions as they came to it, sometimes irritating one group, sometimes another, but never permanently allied with any section or interest, it has earned the reputation of deciding cases fairly. It could only be in serious danger of seeing its power curtailed if it remained of one complexion too long, and this the advanced age at which men usually arrive at the dignity of a seat on the supreme bench makes a practical impossibility.

And at the end of the article:

. . .the Supreme Court is respectable and respected, but not sacrosanct. The decisions of its judges, as the work of fallible human beings should be, are subject to the criticism and comment -- to the 'cussing' -- of their fellow citizens. It would be unwise to curtail either the power of the Court or the freedom of this criticism. It is more important to have an authoritative tribunal to decide disputed questions than to have those decisions in the first instance always be right. But since they may be wrong, the President, the Congress, and the people at large must have the right to say their say about them. Whether we like it or not, they will continue to do so until the character of our institutions or the character of the American people is radically changed. If some of the 'cussing' is unmannerly, we may regret it; but even coarse abuse is less to be deplored than silent subservience.

I like these passages for several reasons: first of all, I have on occasion fallen for the woeful rhetoric of those who say that conduct at contemporary sporting events is unruly and that this indicates a decline in public manners. I especially think of this when I recall shouting at the television in the 1999 playoffs when the umps blew a call (in a series in which they blew several calls, most in favor of the Yankees against the Red Sox); the fans at Fenway felt the same way and started throwing bottles on the field. The shocked reactions of commentators and pundits struck me as misplaced, since it was my team that had gotten nailed. Reed gives us a snapshot of fan behavior from 1936, at least, and shows us that some things have not really changed.

More fundamentally, Reed defends a strong norm of allowing criticism of the decisions of the Supreme Court, and links this up with the unruly characteristics of public discourse in a democracy. I find this perspective refreshing. And unless we are going to exclude political actors from serving on the federal bench (something that is unwise, in my view), we shouldn't be surprised at intemperate criticism of the Court on occasion. Senator Kennedy wanted to raise issues about Pryor's character, and that is certainly fine, but the fact that he was a political actor who engaged in the same kind of criticism of the Court that is periodically common in both political parties should not count against him at all. I don't think he should be confirmed for other reasons, though.

Finally, Reed discusses informal barriers to partisan entrenchment on the Court and implies that long periods of stable membership will increase public criticism. Since the Rhenquist Court has had such stable membership (and voting patterns) over the past decade or so, and since many individuals (Rhenquist included) have now spent three decades on the Court in a dominating role, it is no surprise that liberal criticisms of Bush's judicial nominees have increased, since they now feel that their oxen are being gored and may be gored in the future for quite some time if Bush is allowed to reinforce the Court's conservative (and conservative activist) tendencies. It's worth noting again that two of the characteristics of membership on the Indian high court, for example, are a mandatory retirement age and a norm of requiring service on a state high court, which leads to a relatively high average age of those who are nominated and very short terms of office (see my post here). Institutional borrowings from other countries such as India could actually prevent long-term partisan entrenchment and, in Reed's analysis, be good for the Court as a whole.

MORE: NPR's Nina Totenberg's report on All Things Considered this afternoon provides an audio snippet containing the exchange between Senator Kennedy and Pryor, accessible here, starting at about 2:39 into the segment.

And now I notice that I spelled "Rehnquist" wrong. I'm not alone. And only Rehnquist and Stevens have "spent three decades" on the Court, but you get my point anyway.