A Litmus Test for Judicial Nominees

It's back. Around and about the 30th anniversary of Roe v Wade, presidential candidates are trumpeting their stands on abortion, and Congress is preparing to go to war against itself over appointments to the federal judiciary. Both sides of the Congressional aisle assume that there is a natural "litmus test" for judges: "How might you rule on matters of Reproductive Choice versus the Right to Life?"

I have my own litmus test. If I were the President, I would ask each prospective nominee to the Supreme Court one single question: "What is Justice? You have two hours. Talk."
I would reject candidates for the following reasons:

• Giving a definitive answer. None exists. For every definition you can give, someone can come up with a situation in which your definition is unworkable. If you have a definitive answer and are not God, yours is wrong.
• Finishing on time. Any nominee to the Supreme Court who can't talk about Justice for more than two hours, doesn't know enough about it, doesn't care enough about it, or both.
• Implying that Governments (or Courts) define Justice. Justice is prior to any government, because governments are instituted to secure Justice for the governed. In particular, Justice is prior to Democracy. Democracy is simply the best way known thus far to secure Justice for the governed, because it is the governed who choose their government, and do so at regular intervals.
• Discussing Justice without talking about the relationship of Justice to Law and legal precedent. In other words, without discussing his or her prospective job.
• Discussing Justice without giving insights into Human Nature. To do Justice with respect to Humans, one must know who they are, what they are like, and what is Good for them. Since knowledge of the Good cannot be obtained by uaided reason, this discussion must include Religion as well as Science, and lead to a side discussion of the meaning of the Separation of Church and State.
• Downplaying the centrality of conflict in the question of Justice. All questions of Justice involve deciding between the competing interests of two or more parties, whether the case is of a civil or a criminal nature.
• Discussing Justice without discussing economics. This is called distributive Justice, which concerns the distribution of wealth, and with it power and opportunity in society. This distribution tends to concentrate by race, religion, or other groupings in all societies. I would therefore require a prospective nominee to speak knowledgably on these subjects as well.
• Omitting a discussion of United States Justice toward US and non-US persons in war and peace. Or did you forget about the 3000 internees at Guantanamo?
• Failing to discuss the human use of human and non-human beings. This should open up a wide ranging exploration of our relationships with each other, our zygotes and our cloned cells, as well as our pets, and domestic and wild animals.

I would also expect the candidates to discuss retributive justice and how to deal justly with criminals, including repeat offenders, covering both psychological and sociological aspects of criminality. In fact, I would expect the candidates for nomination to the Federal Judiciary to be able to speak at length about the history and development of the idea of Justice in our own culture, those that preceeded it, and those with whom we share the world.

I think you get the idea. Justice is a vast, complicated subject, as inexhaustible as theology, and in some sense related to it. "For what does the Lord require of thee, but to love kindness, to do Justice, and to walk humbly with thy God?"

Those who would reduce it to one's stand on abortion demean the memories of all who have suffered injustice, and all those who sacrificed to further Justice. Reducing the question of Justice to the question of abortion demeans the public discourse necessary to maintain a democracy.

I would like to thank Professor Kenneth Sharpe from whom I learned the importance and impossibility of fully answering of this one question: "What is Justice?" during the academic year 1974-5 at Swarthmore College. May you make answering it part of your life's quest.

Making a Killing

"This briefing is unclassified, but it does contain graphic violence," warned the speaker. Lights dimmed, and the screen showed what looked like an SUV driving down a country road, viewed from above. A fireball exploded in front of the SUV, blowing its front tires. The six men who bolted from it sprinted at world-record pace back down the road they had just driven, not stopping until they reached a vehicle that had been following them at a discreet distance. From their arm movements, they seemed to be warning the occupants of the second vehicle that there were landmines in the road ahead. But there were no landmines. Another cluster of fireballs engulfed the men and the second vehicle.

The audience snickered, encouraged by the briefer's enthusiasm for his subject. I felt myself smile, too. The dead men had been "illegal combatants" fighting in Afganistan for al-Qaeda, the terrorist organization that destroyed the World Trade Center and part of the Pentagon on September 11, 2001. They had been killed by an AC-130 gunship, flying at night so they couldn't see it, so high they couldn't hear it. The violence of their demise seemed cartoon-like through AC-130's black-and-white, night vision enhanced telescopic gun camera, but there was no doubt that the little dark lines flying out of the bright fireball were their body parts. There was also no doubt who they were — the conversation between the pilot, the gunner, and ground control indicated that they had been carefully identified and specifically targeted for what they had done, and were about to do again. It should also give you an idea of what will happen if the US and its allies go to war in Iraq — there will be no "carpet bombing," but Saddam's army won't be able to move.

Still, someone's brothers, husbands, and sons had just been blown to bits. The smile left my face. I had been tempted into enjoying the deaths of men. Again.

What we had watched was a "hit" carried out by a joint operation of the US Air Force and (most likely) US Special Forces operating on the ground in enemy-controlled territory. The idea was to inflict maximum damage with minimal loss of US personnel in a situation where the US personnel were outnumbered, and our allies out-gunned. Attempting to capture rather than kill the enemy would only have gotten our people and our allies killed.

Of course, there is the option of non-pursuit. We could have just let them continue down the road. So that they could kill more of us. Of anyone who seriously advocates that notion I have a request — pick someone like me who thinks you are personally enabling terrorism and become a human shield for him or her 24/7 until all the terrorists go away.

Or maybe we could negotiate with their leaders — Usama bin Laden and company. Here is their opening position. They want you dead. Period. Now, you bargain with them, if you can find them.

But there is another aspect to the aerial gunship attack that I must mention before I close. If it were to have occurred over the US instead of Afganistan, we ourselves would have been as terrorized by the air-strike as we are by the terrorists. Which means that it sets about the right tone. The terrorists use "asymmetric means" to bypass our defenses — so we use our own form of "asymmetric means" to bypass theirs. They slaughter indiscriminately, yet they wind up being killed by precisely, personally targeted bolts from the sky, with each shot planned to get them to react the way their killers want them to, in order to minimize the expenditure of ordnance in achieving the objective. This is precisely why we use war as a paradigm for US (and when it stands with us, the world's) actions against terrorists. If we restricted ourselves only to the law enforcement paradigm, the means described above would be unavailable to us, because it would be illegal, which would give the terrorists the advantage. They know how to beat the law enforcement paradigm.

In sum, I'm afraid the evil action I saw on the film was the best we could do. I am not proud of my initial reaction to it, but neither am I ashamed. Rather, I think that our enemies should realize that they can stimulate even nice, introspective, anti-capital punishment types like me to say "yes" to graphic violence against them.

Maybe our enemies should consider negotiating with us. Once they stop fighting us, we can be quite reasonable. Just ask the Germans, or the Japanese, or even (if you count the Cold War) the Russians.

Still, if anyone can offer a more Godly suggestion, something realistic that would so amaze the hearts and minds of the terrorists and their supporters that they would forgive us our trespasses against them (both real and imagined) and let us live in peace, I would love to hear about it. The whole world is waiting.