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Thursday, December 3, 2020

The purpose of odd numbers and the obligation to appoint judges

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Back when my kids were small, my son asked me to quiz him on identifying odd numbers. As you can imagine, this became rather dull rather quickly, so I asked him after a while, what are odd numbers for? This led to some silence in the back seat. So I tried a more leading question:

“How do we break ties?”

Good point, Mom! The Supreme Court could never decide all those hard cases with an even number of judges. Can we go back to math now?

Since Justice Antonin Scalia’s death in February, of course, we have had an even number of Supreme Court justices, leaving the potential for ties on the highest court in the land.

President Obama has nominated Merrick Garland to fill the vacancy. No one disputes that he is exceptionally well qualified. He is the chief judge of the United States Court of Appeals for the District of Columbia, which handles some of the most complex appeals in the nation. In the 1990s, he oversaw the investigation and prosecution of the terrorist bombing of the Oklahoma City federal building.

The Republican-controlled Senate, however, has refused to move forward with confirmation hearings. And the official 2016 platform of the Republican Party now unequivocally “salutes” this position, stating that “[t]he confirmation to the Court of additional anti-gun justices would eviscerate the Second Amendment’s fundamental protections.” Judge Garland has now suffered the longest delay that has ever occurred in the Supreme Court confirmation process.

It may not be a disaster to have a Supreme Court case end in a tie once in a while.  This can happen in any event if a justice is recused. The decision of the court of appeals stays in place. Those courts have many able judges. The lawyers and parties who spent enormous resources will be frustrated. Divisive legal issues may be unresolved for longer. Lack of uniformity in judicial decisions may continue to fester.

On occasion, good things can come from uncertainty. Settlements may achieve better outcomes for all concerned than litigation.  Legislatures can craft nuanced solutions to problems if they function right that can be superior in terms of social problem solving than an up-or-down vote of a court. Often the Supreme Court itself declines to take up a case because it believes that the ultimate decision will benefit from further “perculation” in other courts.

In the long term, though, when disputes about the meaning of the law cannot be resolved, the outcome is often gamesmanship and “forum shopping.” Predictability and planning are frustrated.  And if the reason we cannot get disputes resolved is that one political party is seeking a partisan advantage from obstructing the confirmation of exceptionally well qualified judges, we risk seriously undermining the confidence we place in the independence of the federal judiciary and the rule of law itself. I struggle to understand why the Republican Senate’s refusal to hold confirmation hearings for Merrick Garland has not provoked greater outrage. It should.

All of this has made me wonder: What does Jewish law and tradition have to say?

One of the most popularly quoted Torah phrases about justice is“Tzedek, tzedek tirdof,” meaning: Justice, justice shall you pursue.

This is in Deuteronomy 16:20, in a Torah portion called “Shoftim,” meaning “Judges.” Shoftim actually begins two verses earlier, in Deuteronomy 16:18, with a commandment that gets much less attention but that seems every bit as important for people who care about justice: “You shall appoint for you judges and officers in all your gates…”

The obligation to appoint judges doesn’t appear to be optional.  We “shall appoint judges.”  There is no exception when a president is in his last year of office, or for protecting gun ownership.

In analyzing the text itself, we may take note of the repetition: “youshall appoint judges for you.” The appointment of judges is by us and for us. Do we draw meaning from the fact that the obligation to appoint judges comes two verses before the obligation to pursue justice? Is it that the appointment of judges is a predicate to the pursuit of justice?

What about odd numbers? That, too, is part of Jewish tradition. The Talmud’s teaching on courts (Sanhedrins) provides for different courts with different roles, but they all had an odd number of judges: 3, 23 or 71.

In the U.S. Supreme Court this past term, the results of the Senate’s refusal to move forward with Judge Garland’s nomination were less dire than many predicted, mostly due to Justice Anthony Kennedy joining the more consistently “liberal” justices in major decisions involving abortion and affirmative action. The most significant ties involved cases about union political spending and immigration. The Department of Justice is seeking reconsideration in the immigration case, so that may yet be resolved.

Major cases next year in which ties could prove barriers to legal closure include a case asking whether a city may sue mortgage lenders and housing operators for racial discrimination under the Fair Housing Act, and another asking whether Congress violates equal protection principles in establishing different citizenship rules for children born abroad to unwed citizen mothers as opposed to unwed citizen fathers. The Court will also decide cases involving patent law, redistricting, various criminal law issues, and whether claims against Visa and MasterCard concerning ATM fees adequately allege a violation of antitrust laws.

Whether any of these will result in a tie remains unknown. But what we do know is that the precedent set by the Senate’s refusal to move forward with the confirmation of Merrick Garland has set a precedent for dysfunction.

When our kids come home wanting to understand about checks and balances, rather than odd numbers, it is small comfort that we can point to Deuteronomy, as well as the Constitution, in pronouncing the Republican Senate out of order.

Laura W. Brill is a media law and appellate litigator who writes frequently on legal issues. She served as a law clerk to Justice Ruth Bader Ginsburg.

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