Is justice reason or political will? On the contradictions of Supreme Court Justice selection

The court appointmemt system is absurd. The reason for lifetime appointments is because they are supposed to be non-political, but they are nothing but that, and the fact that they are appointed by presidents, who are wholly identified with a partisan political ideology, makes the whole system a fraud.

There is also the problem that the Democrats believe they should balance being true to their supposed ideological commitments with being 'fair' to their Republican colleagues--I think the idea here, which largely drove Obama--is just that of realizing a communitarian collegiality of good fellows within the government and Congress--while Republicans are happy to be unscrupulous and uncompromising, since conservatives have for 60 years sought above all to win and wield power, knowing and not debating or worrying much among themselves the substance of what they are committed to. So now we have the absurd spectacle of having to wonder how many Democrats in the Senate will refuse to confirm a Trump nominee but following the principal of non-cooperation that the Republicans do.

If non-partisanship is the reason for lifetime appointments, they should indeed be appointed by a non-partisan body.

Or, allowing partisanship to operate in the open air, Congress should entertain multiple nominations like at a party convention or election of one of their own. Perhaps the House could do this and the Senate conducts hearings that pretend to be on judicial competence credentials alone. This could serve as a pressure towards appointments being closer to the center.

The problem is everyone knows that the Justices all follow their principles and those of reasoning about the law to come up with the decisions they think are right, but the whole country 'wants' and understands them as valuable for the political valence on the left-right spectrum of their opinions. When was the last time anyone said that a Court decision about abortion was good or bad, right or wrong, because of the specific arguments made in the decision, which almost no one reads, rather than simply conformity to the speaker’s own ideological preferences? Citizens are supposed to ‘choose’ among pre-packaged commodities, representative politicians or opinion-makers, or bodies of statements made by them, and this requires no argument, indeed, no thought at all. If the President and Senate really believe that judicial opponents are a non-partisan affair, the public does not believe that, and almost certainly cannot. That is due to an even deeper problem:

Our political culture, society, and system of governance as well as corporate business culture, all have to little to do with norms of reason and rational argumentation. In our democracy, people do not settle differences and disagreements through reason, as followers of American philosopher Robert Brandom and German philosopher/sociologist Jürgen Habermas think they should and do. Americans argue all the time, but the person with more power almost always wins, and usually everyone is sure that that person is in the right, and for the reasons they do or can give, yet strangely not affecting the outcome. So, knowing he must be right, the boss, or every litigant, assumes that an argument with reasons and evidence showing he is right in what he wants or says is true, is only needed as a tool, but if some other way, including pure force, or the coercion of 'the market', is available, they will use that instead; whatever works, to get what you want.

The same paradox behind Supreme Court appointments is present throughout our legal system: the lawyer arguing a case to a judge or jury both pretends his client is in the right because he is paid and pledged to represent that client, and his or its business interests. At one and the same time, he is appealing to both rational norms of argument and truth and sophistical ones. He makes an argument for what is true based entirely on position, interest, and what he wants. That argument is made appealing to impersonal norms of reason and truth that bracket out those very partisan interests. The court room lawyer must be both of these at once, and so to President and Senate in selecting Supreme Court Justices. It is a plain contradiction that cannot be overcome on the level in which it is stated and exists.

Democracy is not rational government, though it can allow it. Maybe it only guarantees at best that preferences of all the people including the poor or whoever might not ‘count’ will be taken into account and not likely excluded, as they might be if those governing were only elites. It risks only guaranteeing that the political options backed by the best marketing campaign will likely win. We distinguish types of government in terms of 'who' rules, not how they rule or think when they do. A parliamentary body like our Congress and legislatures can reason, as, in our system, only court justices are required to. But they rarely do, at least in our system, where reason is accorded little value as norm. It could be, with the right set of procedural rules, perhaps if enough people wanted them, instead of only caring about winning what they want.

The question of who rules assumes that government and governance are exercises of sovereignty, and what matters is the will that rules, and 'whose' is this will. The popular public demonstration follows this logic, while the strikes they have largely replaced follows an economic one, like boycotts. This is why you should never strike up a discussion with anyone at a public political demonstration or carrying a sign or wearing a t-shirt of one. That t-shirt or button or sign is an indicator that their speech is inscribed definitively as a piece of writing that is as if on a stone tablet, not to be modified or questioned. You will provoke aggressively hostile responses if you ask such a person a question. They will presume you hostile. You could easily be subjected to violence. Why is this? It is because the public demonstration is a manifestation of a popular will, and its logic is that of the possible exercise of force. That is all that backs up all of these people in t-shirts, except media attention, which if gained, does get submitted to forums of discussion. But those forums, like on Facebook and Twitter, have a tendency given our political culture to marginalized reasoned argument on behalf of the expression of will that can be backed by force of possible action or numbers. The people at the demonstration may be counted, like signers of petitions, or people who phone their representative and read a prepared text given to them by the activist political group they are acting with, and not of course to have a discussion whose results will be processed by evaluation of reasons given, but by a tally of the numbers. Voting follows this logic. It is democracy of the will of the majority, which is essentially silent. At the voting booth you cannot say anything except either yes or no, or that you prefer this candidate to that one. Many things may be said, but in the end inarticulate counting decides. The tally compares the numbers expressing their will in support of candidates or ballot propositions, and the decision is a victory and loss. Court cases also have victory and loss, as did Roman stadium tournaments and our sports events, which are about display of generic excellence in bodily engaged group activities. Legal decisions that take the form, as Supreme Court decisions do, of written arguments, are something quite more and other than yes or no, x or y, decisions. But most people treat them as such. The most rational institution of governance in our society is not a democratic one in essence, though formally it does still involve a majority vote. That means that a will and a discourse are conjoined.

What rational governance and democracy have in common concerns the universality of the ability to think and make arguments in language. Every interpersonal situation in which something is at least implicitly decided, that is, something is done that was not known at the outset, and the decision is articulated or performed and enforced in a situation involving two or more concerned or affected parties, is one in which a person not a party to the decision or the action of those in authority to decide, could say, I disagree; it should not be thus. A society in which doing that and then resolving the matter with a discussion equal involving both parties, would be more like an anarchy than a democracy. It is perhaps one thing that underlies and makes possible any parliament or governing council, and democracy as such. Another would be something to do with counting and the matter of sovereignty and will, which has to do with possibilities of action that are potentialities, not already taken but that may or may not be, such that a decision for yes and no may decide if it will be or not. Decision is at the heart of rule in democracies. One aspect of this is related to counting, will, and chance; another turns on the latency at least of reason. Reason decides what is true or right; will decides or choose what is wanted. Justice is by nature rational; liberty is willed. This is perhaps the paradox of government in modern societies.

To shift the balance towards reason, would we need a society in which the university and educational system plays the role, as in France, that the military and corporate productivity does in ours? Would it help if our politicians were chosen to represent ideological factions rather than geographical distributions and interest group campaign donors? Such as society might be less authoritarian and more participatory. Ours is more rhetorical and performative. Which can at least be fun. It is no accident that no one says Paris is a city of dynamism nor New York one of calm lyricism. And so we have more great actors and less place for scholars and thinkers. And activities driven by market norms and strategic manipulation of other people, rather than the quiet and patient labor of thinking. No wonder some people championed the late RBG as a rock star.