[This letter is in response to the “Don’t Call Him ‘Justice’” commentary that appeared in the Oct. 29 issue of Missouri Lawyers Weekly.]
To the Editor:
Professor Gregory Magarian — and please note that I use his honorific “Professor” even though I disagree with his ideas — suggests that we drop Brent Kavanaugh’s honorific “Justice” because the newest member of the Supreme Court is a “grotesque shadow of a Supreme Court” (sic), has “ideological bias,” has committed “abuses and lies,” was put in position by a “sham confirmation,” and has “unjust power.” (“Don’t Call him ‘Justice,’” Oct. 29, 2018).
With Professor Magarian I have four quarrels and one source of happiness.
Quarrel No. 1: The first sentence of the Professor’s oped is two words long: “We fought.” In using the first-person-plural, the Professor assumes his conclusion that all right-thinking people agree with his position on Judge Kavanaugh, and thus there is no need even to acknowledge those who disagree. Well, I disagree, and I do not wish to be lumped in with those in Professor Magarian’s ideological camp. I thus quarrel with the Professor’s use of rhetoric, and use of rhetoric is, of course, the subject of the op-ed.
Quarrel No. 2: Professor Magarian writes that we should drop Justice Kavanaugh’s honorific because Justice Kavanaugh holds his seat illegitimately. But as the Professor surely knows, Justice Kavanaugh was confirmed, 50-48. I therefore conclude that Professor Magarian’s true squabble is with how the Senate proceeded to its vote, and not the outcome of the vote. As the Professor likely knows, however, the constitution does not require a particular process to a vote, or even that the Senate vote at all. I interpret the “advice and consent” clause as a not-too-subtle recommendation to the president that he or she consult with influential senators before making a nomination to see who the Senate might confirm. A president who fails to do so names the nominee at his peril — particularly when the president’s opponents control the Senate. In situations when the president and the Senate cannot work something out, the voters have a way to inflict punishment. Anyway, this time the Senate confirmed the nominee, and thus Justice Kavanaugh holds his seat legitimately. In saying that Justice Kavanaugh holds his seat illegitimately, Professor Magarian denigrates both our constitutional processes and the rule of our constitutional norms.
Quarrel No. 3: The Professor states that “Kavanaugh is a minority justice — appointed by a president who lost the popular vote, confirmed by senators who represent far less than half the population.” Gee, he might want to have at least acknowledged that our constitution is based on federalism and is explicitly designed to balance power between the federal government and the state governments and to prevent majority oppression of the minority. I interpret the Professor’s sentence as a call for a constitutional convention to rewrite the whole thing. Or maybe the Professor needs some Continuing Professorial Education on the reasons why the design of our constitution is actually quite clever, even though it is not a pure democracy, and on why we in the law should support the system’s outcomes, even the ones we don’t like.
Quarrel No. 4: If some counselor arguing a case before the U.S. Supreme Court actually takes Professor Magarian’s advice and starts his response to a question from the new justice with “Kavanaugh” instead of “Justice Kavanaugh,” I suspect the counselor will be harming his client’s case in order to score a political point. That does not sound like a good idea.
What is my source of happiness? Why, I love the first four letters of the Professor’s name: MAGArian!
W. Bevis Schock
Attorney at Law