Supreme Court shouldn't consider 'right' and 'left'

Tuesday, July 14, 2009 | 12:01 a.m. CDT

Following the Supreme Court’s ruling for the plaintiffs in Ricci v. Destefano, (New Haven, Conn., firefighters employment discrimination suit), there has been considerable conjecture as to how it affects future litigation in hiring, promotion or employment issues. Additionally, the pundits have enjoyed a virtual field day concerning its possible effect on Judge Sonia Sotomayor’s confirmation hearings, inasmuch as she was a member of the three-judge appellate panel whose unanimous affirmation of the district court decision was overturned.

The majority opinion as it relates to Sotomayor concedes that her confirmation is in no immediate jeopardy regardless of the political bent of individual handicappers for several reasons. That four of her future Supreme Court colleagues found in her favor, that it is not at all unusual for judgments to be overturned on appeal and that Republican Senate minorities' history of allowing a sitting president's nominations an up or down vote on the floor are all in her corner.

The issue that we should find extremely alarming is neither this court’s decision nor Sotomayor’s qualifications or lack thereof for a seat on the court. After all, a study of Article III in the U. S. Constitution discloses no qualifications pertinent to election or selection of a member of the judiciary , instead, stating only “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour and shall, at stated times, receive for their services, a compensation.”

Accordingly, it appears that so long as judges behave themselves, they will continue to serve and draw a stipend. It would also appear that those appointed or otherwise selected were expected to understand and adhere to the separation of powers established by the Constitution — i.e., the legislative branch makes the laws, the executive enforces those laws and the judiciary interprets the laws. At least, that is what I remember from my elementary school civics class.

Thus, it should be abundantly clear that the number of split decisions, primarily in those decided by 5-4 votes in the Supreme Court, should be troubling enough to raise questions. In the session which ended in 2008, fully a third were decided by 5-4 votes, consequently, the New Haven firefighters case is but an extension of the court’s seeming inability to interpret the Constitution or the law from the same page.

I am not an attorney nor do I claim any expertise in the law. My legal experience is largely confined to the military where I served as prosecution and defense counsel in Special Courts Martial, a member and president of both Special and General Courts Martial and as a Summary Court Martial — the Summary Court closely approximating a civil magistrate. I don’t recall any major difficulties in understanding or interpreting the Uniformed Code of Military Justice, which, by the way, adheres to the U. S. Constitution.

I will not bore the reader with the details of the court’s split decisions nor will I comment on the affirmations and dissents — they are a matter of public record. As to the decision in Ricci v. Destefano, I do submit, in my understanding of the Constitution, the Civil Rights Act of 1964 and adding a dollop of common sense and fairness — that the majority decision was not a slam dunk, 9-0 decision is beyond comprehension.

Under our judicial system, the Supreme Court, the highest court in the land, is composed of justices who learned their trade at the nation’s elite law schools, practiced the law, clerked for distinguished Supreme Court justices and for the most part, have served as judges in the appellate court system. Therefore, why does there exist and why must we tolerate “conservative” and “liberal’ interpretations of the Constitution?

For example, there are exact laws in physics, including Newton’s three laws of motion, the law of gravity and the laws of thermodynamics; there are also laws of mathematics which are best explained in simple terms — 2+2=4, and 4x4=16 every time. Consequently, why should a group of nine erudite and learned scholars with like experiences, training and education find it so often impossible to read and interpret the law as written?

In drafting and approving the Constitution, I doubt seriously that our founders considered “right” and “left” but rather intended to provide a vehicle for our self government. That this was their primary consideration is borne out by the Bill of Rights added as the first 10 Amendments to ensure that certain enumerated personal freedoms were not abridged by the government and by establishing a procedure for other amendments as necessary. Politicizing of the courts as liberal or conservative factions was not intended and was certainly other than we were taught in American Government classes.

I am beginning to understand more and more the wisdom of our founding fathers in not mandating that judges be attorneys as perhaps interpretation of the law is too simple to be entrusted to lawyers.

J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at

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