On the Suzuki Court

Appendix 1: Remarks of Senator Joel Seger of Minnesota upon voting for confirmation of Judge Benjamin Suzuki as Chief Justice of the Supreme Court of the United States

Appendix 2: Remarks of Senator Jon Werren of Vermont upon voting against confirmation of Judge Benjamin Suzuki as Chief Justice of the Supreme Court of the United States

Appendix 3: Remarks of Senator Mary Talbot of Nebraska upon voting for confirmation of Judge Benjamin Suzuki as Chief Justice of the Supreme Court of the United States

Appendix 4: Historical notes

         1. Committee vote

        2. Senate Confirmation vote

        3. Electoral fate of Senator Seger

Appendix 5: Two entries from the Journal of Associate Justice Henry Mitland

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Appendix 1

 Remarks of Senator Joel Seger of Minnesota upon voting for confirmation of Judge Benjamin Suzuki as Chief Justice of the Supreme Court of the United States

Three years ago I won a very close election in my state. I trumpeted victory for my political views at the time, but privately other things were being said. Consultants told me rather slights changes could well have shifted victory to my opponent. Getting out the vote had been crucial–more so than in many past elections. My margin was so thin that happenstance may have been controlling. Who could take off work to press both the committed and uncertain to the polls. Who was sick and couldn’t. Who had family conflicts which left them paralyzed. My consultants had jargon for this–“sampling error.” Public division was so equal that the measure of political opinion–total vote for a candidate–depended heavily on factors unrelated to opinion: getting off work, being sick, whatnot.

Now I campaigned clearly and forcefully for a woman’s right to choose. I have always done so in my political and private life. I still feel so. But opposition to Choice has grown in the past few decades. Worse, in honesty I would have to admit that many in my voting coalition no longer feel strongly about Choice.

Actually, true choice has been declining for some time. Abortion clinics are largely restricted to dense urban areas; few doctors independent of such clinics will perform an abortion. State health programs sometimes refuse coverage; private hospitals can now refuse their facilities if they wish. One of our present Justices [Rachel Colleen Whitehead] is on the Court precisely because, when attorney activist, she managed to increase clinic insurance through civil suits, closing more clinics and raising the cost of an abortion among remaining practitioners.

A right is not an entitlement, we are told. Similarly, free speech does not guarantee publication. Let the market bear the burden; well, that burden is decidedly against choice. I admit a similarity with free speech at the dawn of the press. Publication was expensive, the literate a small minority. Even devoid of State censorship, even with State protection of the press, the market of the day clearly silenced many.

Yet pro-lifers want still more. They strive for State prohibition; the market is not enough. I know their view of life demands this. The market is shaving away what has become a minority right. I do not say this easily. I know polls continue to reflect approval for at least limited choice. But I do not think, or rather no longer think, that these polls will translate into a voting block of similar magnitude. More and more choice is affirmed grudgingly. More and more it fails to pivot a vote. Understand, I still firmly believe in choice. I still believe reversal of Roe v Wade would lead to a backlash. But, I must ask myself, is that how we want to define rights, through a democratic seesaw, as a pendulum of public opinion?

I am aware that the struggle for rights is by definition political. And I know other rights have waxed and waned. But I do not see these past rights battles as creating unbreakable, opposed coalitions; rather, somehow the articulation of those rights, a phrase Judge Suzuki used repeatedly–articulation of rights–defused the confrontation over time. Surely the confrontation over abortion has grown with time in the country. Perhaps only slavery compares.

Pro-lifers have long claimed kinship with abolitionists. Both, they say, seek an expansion of personhood. I cannot deny that. Both, they say, seek this expansion at material cost to some. Precisely because restricting personhood is to the advantage of some, a material cost upon its expansion is inevitable. A master would lose his investment. A woman, even if guaranteed an adoption, loses nine months of her life, in potential. More. The costs of pregnancy can delay options which turn into lost options. Worse, a forced pregnancy can invoke family which coerce against adoption despite the full protection of the law. If a pregnancy is not just a woman’s decision, neither is the decision to adopt. Such considerations have kept, still keep, me pro-choice. To those who see this decision facile I would remind that Lincoln did not advocate abolition absent compensation.

Here the parallel becomes uncomfortable, I think. Slavery was so vast that compensation was unavoidable; that, or war, which is what we had. And, after that war, slavery did not vanish, no, not in all of its emblems, no, not even one hundred years later. The very Court over which we today contend made a badge of slavery the law of the land in the 1890’s. War failed because the victor needn’t compensate. A myth even then, I’d say–compensation. Compensation, before or after war, was impossible. Pretending otherwise lead to a blindness some in my Party say haunts still.

I ask those on the other side, are they so certain that turning a blind eye toward forced pregnancy will not come to haunt us? The issue will remain diffuse, unlike slavery, which concentrates with necessity. But the issue will not dissipate.

I see myself on ground where tremors begin. I must find a place to stand. I see the hard coalition which raised me diminishing. Into this uncertainty Judge Suzuki placed an answer of sorts. To quote: Perhaps progress is mostly about the considered choice of loss. Judge Suzuki, you are my considered choice of loss. I vote for your confirmation. I do so, in your own words, for potentiality. The battles of the past no longer work; I do not want them. I will have to defend these remarks fiercely, I know. But the Supreme Court, even one mind on that Court, is beyond the wiles of my political health. Find us a new field of battle, Judge, find us a new field of battle.

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Appendix 2

 Remarks of Senator Jon Werren of Vermont upon voting against confirmation of Judge Benjamin Suzuki as Chief Justice of the Supreme Court of the United States

 Politics is the placement of shadows. Not their eradication; their placement. I long ago abandoned faith that all may be placed in light. To place one in relief makes their shadow, a shadow which obscures something else. I have spied from the corner of my eye things scurrying into these shadows made; almost seen that in high relief of light protest at what moves into its shadow. Protests, but still something there goes. Some may say what lives in the shadow is content. I have never believed that; things scurry there because they must. That is the price of success, the price of beauty, the price of security–all borne by something else not quite visible.

I chose the shadows I abhorred early, and have since fought to relieve what there abides with light. I see the gratitude when light comes, the scars shadows made then to heal in recognition of what they are. But I am under no illusion that new scars are not made in the shadows my light brings forth. The loss of light is itself a scar, maybe one of the worst. Something new scurries to where I cannot see–and I say let someone else come to relieve that. Let someone else come, and find me ready for battle. I will not let you push back the hope I have helped make. Politics is nothing but great battle, Benjamin Suzuki told us. Yes, Judge, it is. A battle that never ends.

I have known the fight would turn against me, for I spy myself in my enemies. We are equally committed, equally indignant. I know them well; they come from the shadows I have helped make. They know me as their creator–and man they come to create. Neither of us can trust the other, for neither of us is honest. Our sole honesty comes from the light we make, the vanquish of shadows we abhor.

Into this fray comes Benjamin Suzuki, alive in light or dark, a man of no side–no, more than that, a man who says there is no side. A man who asks us to learn defeat and become something else. A man who thinks the mind an honest thing. He would vanquish all shadows by letting the light abide nowhere long. He would see scars innumerable balmed briefly in light passing to where we do not know. He would ask us to become that passing light which is relief turned to shadow turned to relief from some other angle turned, turned, turned….until the very concept of sustained victory has left our minds forever.

I know. I have already said the shadows will come with their own champions to bathe us in the loss which was our lot. But this is a battle of victory and defeat which sustains a margin of relief over time; we will fall as they will fall. Judge Suzuki would have us become the wandering light, relief for some unthought of, lost then to others previously unknown. He would have us be more than we are–living men and women who create the hope anew from which we thrived. He would have us be honest in what we do, and I will not have that. I will not take away the bread from my child; I will not take away the beauty of my love. Honesty is a tool. It is a tool with great potential, but no tool fits all occasions. Honesty would have me look in all the shadows. But if I do that the grand relief of the hurts I exposed unique to my light would be lost.

I warn the other aisle that your loyalty to the President which careens you to confirmation will produce no ally. No Justice which will satisfy you with votes in the wars we have long made. This man will leave us without war to fight. He will not take the questions we expect. And let us recognize in this moment of unpleasantly forced honesty that we all here abide through war.

I know where I stand makes shadow, as do you. Through this I know I am. Through this I know I am here. But this man would leave us neither light nor dark and that would make me something I now am not. I would stay what I am–as would you.

I slight not this man’s integrity. He would give you what you want, what you think you have been waiting for–if he can. But it is not the act we should measure; it is the underlying rationale. His reasons are not yours. He would not stop where you would. He will take your hope and make something new. I would have no man take my hope from me for foreign gain.

Benjamin Suzuki, I vote against you. Not because you are on the other side, for you have shown me you are not. You are something more deadly than any side, and I vote against you with more resolve than all the others I have seen placed on the Bench against my will. I would not have you destroy my world–or try.

After Bork I thought honesty impossible in confirmation hearings, and so it seemed. But you have shown otherwise. You have employed honesty where it should not go, and that is surfeit reason to deny your seat. Honesty is not a weapon when ubiquitously employed. This, in my view, is your greatest threat. You would take the weapon of honesty away from us.

I know what I have said this day, Benjamin Suzuki. You have forced this honesty from me. If you pray, Judge, pray for me. Pray for me in my battles, honesty in my pocket for strategic release. Pray–for I, a man of reason, know what I have said this day.

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Appendix 3

 Remarks of Senator Mary Talbot of Nebraska upon voting for confirmation of Judge Benjamin Suzuki as Chief Justice of the Supreme Court of the United States

 When the Resurgence came I vowed to be more than politician rallying frenzied hope around me, shield of victory for victory’s sake. Salvation is hope felt more alone than shared, recurring with every birth. That is the true, unending resurgence, a constant of human history; and I would not ride babies to a comfortable life. Nor will I today.

These five years in the Senate my vow has stood with me, and I have performed the only gratitude I have: to introduce it to others. To introduce, but not to tell the new acquaintances what to become. Faith cannot be forced; and, contrary to those who call my league Taliban–a very American conceit, to use such label–I know every partnership with the Creator is unique, each an infinity beyond my reckoning.

No, we are no Taliban. But you will not tell our children what they must become, a conceit my God asks me to avoid when I see the Holy Spirit alight nearby. You do not see the grace that what I cannot do to God I cannot do to you. You have no wish to understand what you face. That I call fear.

After the reception of Justice Whitehead I realized we had made a mistake. I am sorely glad she is on our Court; but I see now we wanted you to recognize our voice as we recognize our own. I, and my league, wanted you to understand faith–our faith. I forgot the simple truth that the Holy Spirit is no angel whose presence can be evoked with incantations political and spiritual. Our almost loss is lesson that the Spirit demands full autonomy.

Upon this hard lesson of verbal hurt my President has placed the failed voucher opinion of Benjamin Suzuki. I do not like Judge Suzuki. He plays a fiction of many worlds where people made into children run from horse to horse on a merry-go-round, going nowhere, unaware that it all must end. The same hard reality as Galileo is in my faith, but Suzuki thinks nothing of birth and death beyond their role as ephemeral players in a drama of his own design. He is a blood-letter in an emaciated age.

Even so, faith is not a matter of like and dislike. Uncomfortable in his hearings, I began to see why my President chanced this nomination. The Spirit demands autonomy, and Suzuki would offer that. Autonomy from you, my opponents of faith; but autonomy from me as well. And autonomy from the Resurgence. As I am humbled when the Spirit alights on a heart nearby, so should I be humbled in the struggle to build a community of worship. Judge Suzuki would have this as well. All our differences come to nothing in this light. I will risk my faith, knowing there is no risk. If Judge Suzuki can someday sustain vouchers, all of the differences he would make will vanish. This is why my President chose him. To take us forward, not through the mind of Suzuki or the nine of the Court, but through the autonomous Holy Spirit which will create the true pluralism of beginnings with God.

The Resurgence has battled long for this opportunity to stand back and let things happen. Judge Suzuki, I and mine vote for your confirmation. Go to your post knowing we will present the voucher to you for decision. Our work is not yet done; we shall infect the States with the joy of childhood hope which becomes maturity. This faith sustaining our hearths will provide the decisive patriotism. Man of God who has no God, prepare–your work comes. You shall be used–I think you know that. And I, I, Benjamin Suzuki, I stand faithful with my vow.

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Appendix 4

 Historical notes

 1. Committee vote

 Shall Benjamin Suzuki, appellate judge of the State of Oregon, be reported to the full Senate favorably for confirmation as Chief Justice of the Supreme Court of the United States?

Chairman Allred (Montana, Republican)–Yes

Senator Joel Seger (Minnesota, Democrat)–Yes

Senator Mary Talbot (Nebraska, Republican)–Yes

Senator Howard Topoff (Wyoming, Republican)–No

Senator Jon Werren (Vermont, Democrat)–No

2. Senate Confirmation vote

At confirmation, the Senate consisted of 69 Republicans and 31 Democrats. Of the 69 Republicans, 65 voted to confirm Suzuki, 4 against; of the 31 Democrats, 7 voted to confirm, 24 not. Benjamin Suzuki was confirmed as Chief Justice, 72-28.

3. Electoral fate of Senator Joel Seger of Minnesota

One year after Suzuki’s confirmation, Joel Seger of Minnesota faced his first re-election campaign. A “pro-choice” primary opponent gathered 46% of the vote in opposition to Seger. While Seger prevailed, the primary battle left the Minnesota Democratic Party substantially weakened and apathetic. Seger lost the general election to a pro-life Republican, polling only 36% of votes cast. That year Republicans enjoyed a margin of 71 seats in the Senate, despite the rancor directed at Chief Justice Suzuki by Justice Scalia’s proposed Constitutional Amendment nullifying the case Nonacs v Selten, Secretary of Defense. The “Scalia Amendment” was part of the Constitution two years later, with Republicans then enjoying 73 Senate seats. President Hazelton, now beginning his second term, was hailed as a brilliant tactician in the nomination of Benjamin Suzuki. That year, Market Day, a series of “dirty bombs” exploding in the financial districts of 6 major cities, propelled Congress to suspend Habeas Corpus in matters of international association; expedited review led the Suzuki Court to annul Congressional power to suspend Habeas Corpus or otherwise completely deny judicial review. Soon the Court declared Guantanamo in violation of the 13th Amendment prohibition of involuntary servitude. The Suzuki Court’s revision of Constitutional jurisprudence had begun.

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Appendix 5

 Two entries from the Journal of Associate Justice Henry Mitland

See Extracts from Mitland’s Journal, entries 4, 5