What Would Make the Court ‘Supreme’?

SAN DIEGO, Ca., February 1, 2015 – President Trump has nominated Neil Gorsuch, currently a United States Court of Appeals judge for the Tenth Circuit, to serve on the United States Supreme Court. Let the political fallout begin.

Brace yourselves for several weeks of unmitigated praise as well as unbridled criticism; neither of which are designed to contribute to an unbiased vetting of the man or his qualifications to do the job. Instead, they are meant to mark the territory for each party in a way that does nothing for the people of the United States.

In a perfect world, Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit and former President Obama’s last nominee, would have at least been given the courtesy of a confirmation hearing. Unfortunately, we live in a political world rather than a perfect one when it comes to anything involving the Federal Government.

On the plus side, Garland will be spared the unfair and demeaning attacks that Gorsuch almost certainly will suffer. Both men are accomplished jurists and deserve to be treated with respect.

What if we were to place an intellectual burden on the nomination and confirmation processes and require them to focus on the qualifications of any individual who is being considered to serve on the Supreme Court?

While there isn’t a job description for those who would sit on the Supreme Court, there are two oaths that Justices are required to take before they may execute the responsibilities of their office.

The first is set forth in 5 U.S.C. § 3331 as follows:

“I, [Name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.”

The second is the revised Judicial Oath defined at 28 U. S. C. § 453, which reads:

“I, [Name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [title of the judicial office being assumed] under the Constitution and laws of the United States.  So help me God.”

If these oaths became the basis for the selection process, Gorsuch should be confirmed just as Garland would have been had he been given the opportunity. While Gorsuch’s and Garland’s legal interpretations may occasionally differ, both have stellar judicial records and significant experience.

Notice that the common thread between the oaths is that the execution of duties is to be based upon the Constitution rather than personal opinion. The oaths require a Justice to “support and defend the Constitution of the United States” and to “faithfully and impartially discharge and perform all duties… under the Constitution.” [Emphasis added.]

Regrettably, nominations have become politicized. They are often made to satiate a constituency and orchestrate conformance to a political ideology; neither of which has anything to do with the actual responsibilities of those who serve. Luckily, once on the bench, Justices are free to exercise good judgment (although some seem increasingly challenged to do so).

Correspondingly, Senators and party zealots will unabashedly reverse their positions about confirmation depending upon which party is in power. This is a betrayal of our core principles, but don’t expect any past or present leaders to condemn it.

We should ask ourselves two questions: (1) Are our best interests truly served if nominees are selected and unduly pressured to produce predetermined results on specific issues; and (2) Should we be able to predict the vote of the Supreme Court, or are we better served by an informed debate that honors the oaths that are required of its Justices?

Federal law is clear in some regards and nebulous in others. When clarity is required, it merits an untainted, rational debate predicated upon facts. Decisions should not be reduced to personal prejudices that undermine the very concept of impartiality, and we should not need to “stack” the Court to obtain justice.


T.J. O’Hara is an internationally recognized author, speaker, and strategic consultant in the private and public sectors. In 2012, he emerged as the leading independent candidate for the Office of President of the United States and the first nominee of the Whig Party in over 150 years. He also has served as the Principal Political Analyst and host of Deconstructed for the Independent Voter News (IVN).


This article first appeared in T.J. O’Hara’s recurring column, Deconstructed, in the Independent Voter News (IVN).