Senate Judiciary confirmation hearings of Benjamin Suzuki: 5. Final session

I have been trying to tell all of you there is no side.

Benjamin Suzuki, Third Session


Let the human spirit be that which, never completed, cannot be evaluated.

Journal of Associate Justice Henry Mitland

dated last day of Suzuki Confirmation Hearings


 Fifth Session

Senators Mary Talbot of Nebraska, Howard Topoff of Wyoming

Primary Interrogators

(Faith, Justice as Space, A Place to Stand, Preparing for Internal Adversaries, Evolution and Creationism, The State May Mandate Evolution but not Creationism, In a Voucher System Creationism May not be Forbidden, Creationism as a Measure of the Alienation of Science in Daily Life, An Intimate Science, Side Stepping Defeat and Victory, Mark 5:1-20, Faith Bundles, The Incomplete Transmission of Faith, Patriotism, Jurisprudence Cannot Avoid Exploitation, Replanting the Human Repertoire, Habeas Corpus and the Bill of Rights, Article III Appellate Jurisdiction and the Bill of Rights, Guantanamo, Rights as Gamble, Terrorism, The Bill of Rights and the Independence War, Flag Burning, Rights Beyond Our Sight, The Hope and Envy of the Judge)


Senator Mary Talbot of Nebraska (Republican): I want to know your faith, Benjamin Suzuki.

<uneasy silence in the audience>

Suzuki: There was a time when that question would be seen as inappropriate in a hearing like this.

Talbot: Not now.

Suzuki: No.

<Suzuki remains silent>

Talbot: Judge?

Suzuki: My faith knows no Credo. It is not said in words. Sometimes is appears in the pauses between words. Sometimes.

Talbot: I am not one to speak ambiguity to permit the polite murmur in reply. Souls are at stake. People never to appear again. I sense you would sacrifice some of these to your principles. “Pauses between words” you say. Pauses to watch others drown!

<Dead silence in the room; Suzuki draws it out>

Suzuki: You strike well and surely. I can envision no enduring principle which will not invite sacrifice somewhere, sometime. I would hold this true of attempts at global salvation as well.

Talbot: Then who would you sacrifice?

Suzuki: That is no matter of my choice, my vision, or my understanding. It simply is. A faith which confronts with exclusion places unbelief on the pyre to keep itself warm.


Suzuki: You are renowned of the Resurgence.

Talbot: I adhere to the revival. Man of mute faith, what do you think of it?

Suzuki: It is. Constitutional process must channel this flow.

Talbot: You channel the hand of God!


Suzuki: Can you live with unbelievers, Senator? Is not your progress entwined with many who fail your belief? Does not the hand of God use unbelief? Even the Resurgence has tides within. With distance comes unbelief. Even in Resurgence.

Talbot: We struggle to understand the will of God. Finite and human, we differ; but our disputes go to the same end.

Suzuki: I have long puzzled why unbelief can not too be seen in this struggle toward common goal.

Talbot: You took this line with our Chairman. It leads to mollification and betrayal.

Suzuki: It may. But not at all places, at all times. I search for defeat which is victory elsewhere, elsetime. There is in this no fixed heaven. I would say the Nazarene employed defeat.

Talbot: For victory over time.

Suzuki: Justice has no fixed heaven. It’s victories migrate away from us, as do the defeats. But Justice will not deny your fixed heaven; it simply cannot claim it as its own. Your victory over time is a door I cannot open without becoming deaf to innumerable others. Use Justice. That is what it is there for: to be used.

Talbot: God is the only measure of Justice.

Suzuki: Use Justice. That is what it is there for. I recall an aphorism:

I am the space amidst you all, shifting so you move, ever dying, ever born, ever unseen.

Talbot: Justice is empty space?

Suzuki: Without that space we would collapse upon one another, contending for dominant single idenity. This happens among us quite often, locally–more or less. Sometimes we call it repression; sometimes atrocity; sometimes genocide; sometimes victory; sometimes destiny. But distance insulates from collapse. The greatest atrocities fail of perfect consumption. So Justice always recovers. Consumption produces greater distance, greater space. So Justice is continually born of the ever minor collapses in the world.


Talbot: There is no stability in this…

Suzuki: Senator, there is no stability in jurisprudence.

Talbot: People need stability. They strive for it their whole lives.

Suzuki: Exactly, Senator. Stability is a measure of individuals, not of people in the world.

Talbot: God condemns his creation to neither extinction nor chaos.

Suzuki: I presume not what God does.

Talbot: We have Scripture.

Suzuki: And so you have heaven.

Talbot: Sir?

Suzuki: Ah. “Sir.” The honorific which has no honor. The Testaments are closed. So stability of exegesis, so of life, seems possible. An open canon risks itself in future men and women.

Talbot: You see the world as unending. We know it temporary. The–canon–as you would call it, is perforce closed.

Suzuki: Yes. Once you assert the temporal world as temporary you must close Scripture; else this assertion may be overturned. Poof! Perpetual instability would come. Maybe not.

Senator, if the temporal world is temporary, let jurisprudence be an open canon for it. It will, in your light, vanish of its own accord. Well, not really. But it will vanish. In return you will have a place to reside until the end times.

Talbot: The eternal intervenes in the temporary, shifting the world toward the end of days.

Suzuki: Ah. Good reply. Salvation rolls people into a great ball, preparing for the end. Jurisprudence could get in the way. My reply must come from within your tradition; else why accept the abode jurisprudence offers. <pause> Ah. Senator, do you know the end of times?

Talbot: Know when? No one truly does.

Suzuki: Hah! Open ended after all! Good thing too. There can be false signs of the end of days?

Talbot: Yes, there have been false signs, over many centuries.

Suzuki: Then I invite jurisprudence as your waiting place. You will have abode, you can grow. But not control, not swell as in the end of days. Even so, Senator, I say challenge as you must; try to swell beyond the bounds of jurisprudence as you must. If you are stayed, if you are turned away, then I say it is not the end of days. But you must try again, later. How’s that?


Talbot: Do you mock me,Benjamin Suzuki?

Suzuki: Absolutely not! I offer a place to stand, together. Not of one mind, but sill standing together. I say challenge me and jurisprudence. But, if you are turned back–acquiesce. Acknowledge the end of days, in sign, is not today. Perhaps tomorrow. Challenge again. But until your next challenge, accept the abode offered in jurisprudence; it is there. And grow. How’s that, enemy unvanquished?

Talbot: And if I say there is no room for growth in your jurisprudence?

Suzuki: Then challenge that. The voucher opinion I expounded would be room for growth of the Resurgence. Of course, that didn’t work.

Talbot: Yes. I mean, yes to the first part. <pause> Your wife: she is Christian.

Suzuki: She is Episcopalian. I think that counts.


Talbot: How do you deal with this difference?

Suzuki: We stare at each other sometimes. Ok, a lot.


Talbot: What will you say to Justice Whitehead, if confirmed?

Suzuki: I will say, “Hello, Justice.”


Suzuki: Why you laugh! I will say: Hello. Justice.

Talbot: This Court you would enter, it is unlike earlier Courts.

Suzuki: Yes. Faiths abide publically on it. This is important for our day.

Talbot: Important as significant? Or appropriate?

Suzuki: The first, certainly. The second, don’t know. This Court samples processes at work in this country–so I believe.

Talbot: You will be a wild card on it, man who is not Christian.

Suzuki: Wild? I am boring–so wife says. Read too much. Write in journals too much. But she is still here. Oh. Yes. Wild card on Court. <pause> I must live with faiths. I do not mean tolerate them as neighbors. Live with them. Gain sustenance through them; return something for this. But not become them. This would be fraud. To become one is to deny the others. There is a place to stand, where the exclusive property of being right does not go. I stand there.

Talbot: What would this mean for the Court?

Suzuki: I would strive to carve a space where many minds may stand–if they will but stay the final battle.

Talbot: “Stay the final battle?”

Suzuki: As in the bargin I offer with your faith. Challenge–but, if turned back, acquiesce, for the moment. The process which turned you back must let you come again. It is my faith that you will always be turned back. It is yours that someday you will not. But consider: we may both fail.

Talbot: Both?

Suzuki: One may come rolling forward who is not you. Acquiesce in being turned back, as a lesson in what you would not be.

Talbot: This will stop the rolling other?

Suzuki: I will not know until it fails. But if you are out there, not disdaining but preparing, I think it less likely. You will absorb discontent in a way jurisprudence can abide.

Talbot: Only if we acquiesce.

Suzuki: You acquiesce because there are somethings you do not want to become. This is my gamble. What you do not want to become–that is a matter of internal search and struggle. All jurisprudence can do is try and selectively nurture those with this quality.

Talbot: How so?

Suzuki: By eliding victory into partial gain, perhaps coupled with partial loss. We make our enemy in continual creation. Only by releasing the battle can we trim our distaste for the adversary.

Talbot: If I do not defend myself I will be trampled.

Suzuki: In many, perhaps most, wars, yes. But not always in these paper wars. We can step aside and be. And which direction we step shapes the other’s victory. A victory no longer wholely theirs. If I remain fixed, allowing myself to be trampled, I have contributed to the perverse enjoyment of triumph. Such thirst will grow. Sometimes, even in paper wars, this cannot be avoided. But I see the strength of the common law in such sidewise slides, where what was contended is not quite what is given. New worlds of possibility portend, old battles and alliances perhaps discarded for new ones. Rights formation should shift similarly. Battle cannot be avoided; battles of the past can be. Well, often so. Let litigants leave the Court bewildered over win and loss.

Talbot: And where will these slides away from former win and loss take us?

Suzuki: Away. Away from the brutal resolution which is our origin. Away. For a time.

Talbot: Your origin–not mine.

Suzuki: I was hoping to side-step evolution.

<scattered chuckles in audience>

Talbot: Do you hold it wrong to teach creationism in public school?


Suzuki: I would preface my answer by saying I do not think creationism the exact issue for the Resurgence.

Talbot: What?

Suzuki: There might be all sorts of creations. People might begin in the meanest of circumstances, thereby shaped into myopic brutes. No, not myopic, as that would be all there is. Knowledge might become a means of escape, or just efficiency in brutality.

Talbot: The Creator would never do that to his creation.

Suzuki: Which is my point: creationism is not about creation but a particular kind of creation. And the alleged refutation of evolution has absolutely nothing to do with the particular social world people were placed in. One can give creationists complete victory and there is still no reason to suppose the Garden of Eden over anything else. Natural selection and the evidence of prolonged human warfare are compatible with brutal origins, I would say. Creationism is simply neutral on human origin.

Talbot: You think brutality original?

Suzuki: <laughs> The law is not as old as the earth. Records show a brutal social world at the emergence of the common law. And I suspect we two would concur that present social worlds in this country often have their own favorite brutalities.

Talbot: Enough of your preface. Answer my question. Do you hold it wrong to teach creationism in public schools?


Suzuki: I think the interesting case would be in a pure voucher system. I guess I am supposed to think that. <pause> Even religious schools accepting vouchers might be said to have a public character. They would certainly have to pass competency tests to retain access to vouchers.

Talbot: Agreed.

Suzuki: Ultimately the State legislatures must define competency. But competency does not preclude other subjects defined as important within each voucher school. Subjects beyond those mandated by the legislature may fundamentally motivate both students and parents–such as particular views of God. The bald answer to your question is this: in a pure voucher system, the legislature may mandate the teaching of evolution; but a school might teach evolution while telling its students the whole subject is a pack of lies–so long as these students perform adequately on the competency tests. I suspect it will be harder for students to perform well under such a double bind, but not impossible. The State may not test for belief, only knowledge. To test for belief strikes me as Establishment.

Talbot: Belief is a kind of knowledge.

Suzuki: I would find it difficult to deny that, although many do. I can say the State may not challenge the engine of belief, often the core of the voucher premise.

Talbot: Let’s stay with the voucher system. Can the State deny the teaching of evolution while mandating creationism?

Suzuki: The State can forbid the teaching of little. Certainly pedophilia and acts directly harmful to children. Evolution could be a side subject just as creationism. But you really want to know if creationism may be mandated for all voucher schools.

Talbot: Yes, I do.

Suzuki: Creationism is largely defined as opposition to evolution. If you take away evolution, its not clear to me what you would teach. Is the earth 8,000 years old? 15,000? Is the universe much older? Were there several life creations? How many? There’s not much to say and no consensus, I suspect. The evolutionary community has a rather precise if changing consensus. Those creating this consensus sometimes, but certainly not always, proclaim a religious faith of some sort. But no life-creationist is an evolutionist. I would say this asymmetry justifies State mandatory teaching of evolution while forbidding mandatory creationism as Establishment.

Talbot: I see.

Suzuki: With respect, you may not. The Resurgence’s anger over evolution comes from the daytime of children separateed from the faith of their parents. This would no longer have to be so in a pure voucher system: find a school which proclaims a faith similar to one’s own. You may have to stomach evolution, depending on the legislature, but you will have daytime reply. You need no longer feel you are forced to place your children in foregin houses. And the Resurgence may agitate within the legislature to remove evolution from competency testing. Without much long term success, I suspect.

Talbot: Why not?

Suzuki: Evolution is increasingly tied to biochemistry and genetics, both promising significant payoffs in jobs and money. A State abandoning evolution will look silly. I am confident evolution would be reclaimed as a competency subject rather quickly.

Talbot: There may be evolution of viruses and the like, but that is far different than…

Suzuki: No Senator. No. It is just a matter of scale. Of the lens employed. There are species aplenty in the tiny worlds and, I am certain, speciations aplenty.

Talbot: So you say but do not show.

Suzuki: Good point. That’s what needs to be done.

Talbot: Judge Suzuki, would you give us this voucher system with, as you say, side teachings of faith and even creationism?

Suzuki: Oh yes, if I could. With respect, I think creationism spurred by a growing alienation of science from the social life of most people. Medicine, which should be most intimately tied to our lives, is rather experienced as bureaucratic, aloof, even hostile. Science comes from above, telling us what to do, forbidding as well. Jobs are tied to it. But what keeps us going in uncertain times is not evolution; it is a faith which reaches out to others for mutual security, a faith which science either disparages or does not see.

Science is as weather: necessary for sustenance, but capable of vast, impersonal harm. Scientists are priests of a foreign God. I hope a pure voucher system will produce secular schools devoted to creating an intimate science; one linking lived life to the scientific method; one devoted to expanding scientific literacy for political-technological issues; one recognizing that both birth and death are cradled in its hands. To those who say a mass public education system can achieve these ends, I reply that intimacy is never authoritarian. The opportunity to walk away must exist. Its absence is genesis of the creationism rebellion. With respect, Senator of the Resurgence, with respect.

Talbot: No place for God, judge?

Suzuki: On the contrary. Your faith would not be muzzled by Constitutionally enforced anonymity. Nor would I be pleased to see all of your various faiths extinguished. Without alternative, all views risk self-immolation.

Talbot: <pause> Anonymity. “anon”: Old English for “into one.”

Suzuki: Only great, terrible battles do that, Senator. It’s to be avoided.

Talbot: We are unmuzzled and you free to foster scientific intimacy. The side-step win.

Suzuki: Me no scientist! Win? And defeat. Some will come, some will go. We live together another day.

Talbot: There’s something else, isn’t there?

Suzuki: Senator?

Talbot: Something you’ve said in these hearings. Some come, some go; some will go to other places–to neither you nor I. Coalitions of people. They will change. You don’t want people to come to you; you want coalitions to shift and shift.

Suzuki: I bow.

<prolonged silence>

Talbot: I want to return to your wife.

Suzuki: Why do that! What she say!


Talbot: I know this is–irregular, even improper. But this is a predominately Christian country. You say faiths should live together, and your wife is Christian.

Suzuki: But not Resurgence. Not all Christians are Resurgence, no?


Talbot: Judge, if I married someone who did not believe in antibiotics, I would likely face a dilemma. Our child could get sick…

Suzuki: Ah. Heaven is the ultimate antibiotic. With sincerity.

Talbot: It is eternity.

Suzuki: Yes. I can answer this. She says I am going to heaven.

Talbot: What?

Suzuki: I said that too. Something to do with coming to God in different ways. She says if I weren’t going to heaven she wouldn’t be with me. I go into my study. I come out. She is still there. I am still going to heaven, it seems. Marvelous and perplexing.


Suzuki: She is not of the Resurgence. I said that.


Suzuki: Do not disdain these differences. They provide the tenuous links that may bring people to you.

Talbot: You would do this with those who deny antibiotics?

Suzuki: Sometimes. Where would I be if I refused them completely? In arrogance I add: where would they be?

Talbot: Charity is a different matter. I would not refuse charity to anyone.

Suzuki: No, I speak not of charity but ideology, belief. These are our roads. When I bar ideology, charity becomes a subservience in acceptance.

Talbot: God rules. He does not negotiate.

Suzuki: Most unfortunate.

<coughing and shuffling in audience>

Suzuki: There is a story in the synoptic Gospels. It cannot reconcile us. But it shows something of the faith I see. It is in Mark, Matthew, and Luke, but most developed in the oldest–Mark. I wrote it down. May I relate it?

Talbot: From your pocket notebook? Is there nothing not in that notebook?

Suzuki: I knew I would face you today, Mary Talbot. Senator.

Talbot: Proceed.

Suzuki: This is Mark 5:1-20. Jesus is traveling with disciples on the Sea of Galilee. Ok, a lake. So:

And they came to the other side of the sea, to the region of the Gerasenes. And when [Jesus] got out of the boat, suddenly a person controlled by an unclean spirit came from the tombs to accost him. This man made his home in the tombs, and nobody was able to bind him….[W]hen he saw Jesus from a distance, he ran up and knelt before him and, shouting at the top of his voice, he says, “What do you want with me, Jesus, you son of the most high God? …

And Jesus started questioning him: “What’s your name?”

“My name is Legion, for there are many of us.”

And it kept begging [Jesus] over and over not to expel them from their territory.

Now over by the mountain a large herd of pigs was feeding. And so they bargained with [Jesus}: “Send us over to the pigs so we may enter them!”

[Jesus] agreed. And then the unclean spirits came out and entered the pigs, and the herd rushed down the bluff into the sea, about two thousand of them, and drowned.

That’s a lot of confused piggery. Then what? Let’s see:

And the herdsmen ran off and reported it in town and out in country.

<pause> What I find interesting about this story is that the man controlled by Legion is not Jewish. Jesus is intervening in a non-Jewish incident even though God at this point in the Markian narative is a Jewish God. In fact, if Jesus is preaching to Jews it is unclear why he traveled to Gerasenes at all. Now the story ends:

And as Jesus was getting into the boat [to leave] the ex-demoniac kept pleading with Jesus to let him go along. Jesus would not let him, but says to him “Go home to your people and tell them what your patron has done for you–how he has shown mercy to you.”

And [the man] went away and started spreading the news in the Decapolis about what Jesus had done for him, and everybody would marvel.

My translation says the Decapolis was a league of ten predominately Gentile cities, most east of the Jordon River. Here we have proselytizing outside of Judaism, by a Gentile, before Paul. But with a restricted….

Talbot: Excuse me. You have Jesus say “tell them what your patron had done.” Patron? Not God or Lord. What translation is this?

Suzuki: A late 20th century academic one. Of the Miller edited volume. The New Jerusalem Bible of the same time uses “Lord,” but notes that the word can convey anything from “sir” to “lordship” to divinity. I think patron a good choice. Matthew’s version says nothing of the ex-demoniac once the pigs drown; Jesus just leaves. No command to tell Gentiles anything–appropriate for the most Judeo-centric Gospel. Luke has Jesus give the command, but says “tell the story of what God has done for you.” The wording is clear; the New Jerusalem Bible has the same. Luke-Acts knows of Paul; the author is relating a global faith of one God, so I expect Luke to use unequivocally “God” rather than “patron” or even “lord.” Mark, surmised the oldest of the three, uses a word which implies power but not divinity; well, at least not exclusive divinity outside of Judaism.

Talbot: Where are you going with this?

Suzuki: Jesus intervenes in something. But not to garner a disciple. He refuses him, almost as though saying the ex-demoniac’s people are not appropriate for the full message. Only the expulsion of Legion. Jesus must know that if the story takes hold it will be transformed in the non-Judaic environment of those cities. Especially so, since unconnected to the parables and sermons. The expulsion of Legion is important, sufficient, in its own right.

Talbot: And what relevance has this to, how did you say it, “the faith you see?”

Suzuki: A faith not to replicate in entirety but to enable transmission of an event which the faith produces. That event, its story, becomes embedded in other traditions and faiths. Faiths, as a whole, are a means of making these events which transmit part of the original in a new bundle. Needing foreign elements for that bundle, other beliefs cannot be disparaged. There. I made a point.

Talbot: Ah. The shifting coalitions. Quite a detour to come back to that.

Suzuki: Well, there’s more to the story. “Legion” is thought to mean the Roman occupation forces–the Roman legions. This Legion lives in the tombs of non-Jews, occupies the death space of both Jews and non-Jews. The man possessed by Legion seems a combination insurgent-bandit, driven to a frenzy by the occupation, an occupation of more than Judaism. Transfer of Legion to the pigs–hard to fathom, but suggests removing one’s livelihood interest from those of the Romans. Pigs are unclean in Judaism. The man is freed when the Romans no longer care about him. Jesus is anti-insurgent but not pro-Roman. This seems the message sent to the ten cities.

Talbot: Oh, stop it. This kind of supposition never ends.

Suzuki: No it doesn’t, does it?

Talbot: Translations are insidious, tempting unending supposition., sinuously drifting from the true design. “Patron” instead of “Lord”!

Suzuki: Senator, I think God knows all about translations. I think he expects them. I think he wants the story to drift into something new. The stories. And I think the Markian passage I read hints at this.

Talbot: There can be no community of believers with an attitude like that.

Suzuki: I agree. It is essential that many if not most people think concretely of a single faith bundle. If not, the very process I discuss would fail; it relies on an all or nothing attitude among others for the formation of new bundles. This pluralism is not about tolerance. It’s about actively wanting others to think differently than me.

Talbot: So your voucher schools. So your shifting coalitions. So your “faith bundles.” God knows what you want to do with rights.


Talbot: I’m done. My mind’s numbed until I don’t rightly know the battle anymore. But on the morning I will know.

Suzuki: Yes, we return to that. Senator, have I lost your vote?

Talbot: No. No. Damn my President, no. You use me and I will try and use you. Mr. Chairman.

Chairman Roy Allred of Montana (Republican): Thank you for that edifying discussion of whatever it was, Mary. <pause> It’s always the same with you, Benjamin Suzuki. Indignation is mollified into Platonic dialogue. If you can do that on the Bench we can expect something different. Don’t know if you realize how sorely awful people don’t want to be changed, though. No matter. I’m just grateful there’s only one interrogator left. The Senator from Wyoming. Senator?

Senator Howard Topoff of Wyoming (Republican): There’s a war on and it hasn’t been mentioned once. Instead you’ve been talking about pigs in Mark. Don’t you find that strange?

Suzuki: No Senator. We mask causes with words. Soon we are battling among ourselves with words, for the control of words, oblivious of what they originally masked. We make islands of quiet, then strafe them with words. The victors, dazed or drunk, find their tools of battle, their words, mean something else, somewhere else. That’s where their meaning lies, out there, reaching in as we reach out. Pigs in Mark, the descending Peace of Allah: profound weapons. I will not leave them to others.

Chairman Allred: Told ya, Howard.

Topoff: Be quiet, Roy. What about patriotism, Suzuki? Just words for battle? Are you a patriot in this war?

Suzuki: Words are not just for battle. They emerge during the false solitude, that time distanced in night when we seem apart from the social tension which births us, which shapes us through the forced walk. That is how we leap: not in the walk, but in the respite. When two leaping meet–a miracle made manifest.

Oh. Your face says I obfuscate again. Am I a patriot? I am a citizen of the United States under the Constitution of the United States. Will I let you define patriot as coin for passage on the Court? No, Senator, I will not.

Topoff: Is patriotism a word of battle?

Suzuki: Without doubt. I believe Justice Scalia found patriotism inadequate reason for criminalizing burning of the American flag.

Topoff: A close vote, that one, 5-4.

Suzuki: Yes. But the country seems rather unharmed by the outcome. Scalia said that allowing such burning shows the strength of this country. I wonder what those who would criminalize feel has been lost.

Topoff: Indignation. Indignation is a fuel for morality, giving purpose.

Suzuki: A most dangerous fuel,, susceptible to spontaneous combustion.

Topoff: People are dying for this country.

Suzuki: They are.

Topoff: They die so you can sit on that Bench.

Suzuki: They do, but likely think not of that.

Topoff: No, likely not. But still you benefit.

Suzuki: Many benefit unseen by sacrifice. A sacrifice does not get to determine its beneficiaries.

Topoff: Yes, many bleed patriotism.

Suzuki: Patriotism always bleeds.

Topoff: I will not have an exploiter of men on the Court.


Suzuki: Then you would have no Court.

Topoff: Explain.

Chairman Allred: You’re going to be sorry you said that, Howard. That’s what he wants.

Topoff: You’re out of order, Roy. Explain, Suzuki.

Suzuki: Courts, perhaps Justice, does not remove exploitation; it rechannels it. The secret, I think, is in children.

Topoff: What? In children?

Chairman Allred: Here we go!

Suzuki: Have you seen a parent who makes of their child an extension, a third arm? Some bridle at this. We see a child who will outlive the parent, a child whose life may be truncated in possibility because of the demands of the moment. But to reverse the flow, to increase the child’s potential, that exploits the parent’s now.

Topoff: Not exploitation: love.

Suzuki: Yes, but not always given.

Topoff: It is for the parent’s posterity, for the family.

Suzuki: And today we might add–for the genes.

Topoff: Yes.

Suzuki: But a gene is not the parent, nor the child, although we often equate the two in both cases. Parents often truncate their children, and life boils onward.

Topoff: Life is not always good life. Where do you go with this?

Suzuki: To decide not to truncate a child is to nurture potential which may turn away once realized. Love lies not in the realization, but in tending the potential. This too is the well-spring of Justice: to stay the truncation of potential.

Topoff: Parental love drives the courts? How did you get here?

Suzuki: <bark laughs> Not too often are the courts so driven. I don’t know how I got here–I’ve already said that. Senator, the human repertoire is rather limited. Our miracle lies in transplanting and sustaining reactions from one environment to another. Why some transplants work while others fail strikes me as an essential question.

Chairman Allred: You feel nice an’ comfy couched by all these words, Howard? All peaceful like. Remember your line of questioning? Don’t need to–just float away. I’ve been watching you these days, Suzuki–I know you. But don’t you worry–you’ll get my vote, Hazelton being Republican and all. Damn fine trap he’s put us–and him–in.


Topoff: The Chairman has a point.

Suzuki: I believe the point of the preceding is that Justice cannot escape exploitation. The question is how exploitation is allocated.

Topoff: Would you say war is exploitation, not just defense?

Suzuki: How could one say otherwise?

Topoff: What is the Court’s role during war?

Suzuki: Congress has yet to fully suspend Habeas Corpus. The war power has yet to be fully applied. If you do not like what the Court does, apply the power provided by the Constitution. To quibble over a nominee’s particular views in the area strikes me as–cowardly.

<Chairman Allred guffaws>

Topoff: Are you saying that because Habeas Corpus has not been suspended you will not consider questions about the war?

Suzuki: That Habeas Corpus may be suspended suggests that the Court should be autonomous on these issues.

Topoff: Would you create jurisdiction, as in the Guantanamo Case?

Suzuki: That jurisdiction has already been created.

Topoff: Created by the Court, not Congress. Congress creates appellate jurisdiction.

Suzuki: The Bill of Rights says otherwise.

Topoff: What?

Suzuki: “Congress shall make no law …abridging the freedom of speech.” If Congress can bar appeals on the issue it can make such law. The Bill of Rights is, in part, a rather sweeping alteration of Article III. The Fifth Amendment says “No persons shall be …deprived of life, liberty, or property without due process of law.” No persons.

Topoff: Guantanamo is not U.S. soil.

Suzuki: The only power there, for decades, has been the United States. Jurisdiction is a consequence of power.

Topoff: Congress has not provided jurisdiction.

Suzuki: Again, the Bill of Rights is meaningful only if understood as a sweeping alteration of Article III.

Topoff: Can Congress remove appellate jurisdiction on any Court defined right?

Suzuki: If these rights are derived from amendment, no. A Constitutional Amendment colors all that precedes it. If, however, the right is derived from the original unamended document, yes, appellate jurisdiction can be denied, for such rights are co-present with Article III.

Topoff: Then why bother suspending Habeas Corpus?

Suzuki: Habeas Corpus can be applied to courts of the first instance; it’s not an appellate tool, as such. In any case, suspension has never been adjudicated. Nor has appellate jurisdiction ever been suspended on the Bill of Rights, whole or partial. But the Guantanamo case–Rasul v Bush–comes close to the issue be asserting jurisdiction not provided by Congress.

Topoff: Then Congress has already been gelded. Our only power is in confirming nominees. You should answer the questions I pose, by your own logic.

Suzuki: <laughs> Excellent parry! But asserting jurisdiction not provided is not exactly equivalent to recovering jurisdiction overtly denied by Article III; whether the Bill of Rights overturns Article III in this has yet to be adjudicated. But I think the whole issue comes down to flag burning.

Chairman Allred: Dance like a butterfly….

Topoff: What? Suzuki, not the Chairman.

Suzuki: Rights are potential, and all potential is a gamble. It is remarkable that the Bill of Rights has done us so well. Those amendments were devised for a quite different day–a time of extended families, high transportation costs, and quite limited information flow. It is not obvious that these rights should work in today’s social economy.

Topoff: Perhaps they do not, during war.


Suzuki: It is a gamble. A Court saying otherwise is lying to itself as well as you. Terrorism is a diffuse network employing near instantaneous transfer of information and money, the latter being a convertible good. It has antecedents back at least to the 1600’s, but has in our day become qualitatively different: the goal is to disrupt financial structure, such as insurance, affecting the world far removed from the explosive event. We must similarly affect the world far removed from the terrorists.

Topoff: This the Administration is trying to do.

Suzuki: That is not for me to say. In any case, the Court should not calculate the gamble and decide. Jurisprudence is blind to this. It creates gambles in outcome, but plays them to neither win nor lose. It plays for other reasons.

Topoff: The Constitution as suicide pact.

Suzuki: There is the amendment process.

Topoff: A futile option, mostly.

Suzuki: So far.

Topoff: I cannot believe those ratifying the Bill of Rights foresaw such muzzling.

Suzuki: I am uncertain. I have developed great respect for the ambiguities inherent in ratifying the early amendments.

Topoff: More room for maneuver in those judicial interpretations, hey Judge?

Suzuki: <bark laughs> Well, yes. But not without reason. Again, transport costs of the day facilitated divergent interpretations or emphases. Clearly representation in Congress was thought by many an inadequate safeguard against loss of local autonomy–I’d say often county autonomy rather than State autonomy.

Topoff: County?

Suzuki: County court and sheriff were the most frequently experienced forms of government; they often collected taxes as well. Without Habeas Corpus the Federal government could intervene with impunity; so too if Congress removed appellate jurisdiction.

Topoff: You think retention of the Writ and automatic appeal are behind the amendments?

Suzuki: Certainly automatic appeal; as I’ve said, the Bill of Rights otherwise loses force. Ours was to be the first independent Judiciary, both feared and craved; appeal on the Bill of Rights seems limiting to Congress, a power easily given to the future Court.

As to Writ, I have already argued that, at the Founding, “due process” could mean little more than common law, and common law was based on writ. When the first ten amendments were ratified, the Independence War was but a decade removed. During the war there had been no regular courts, for patriot or loyalist. I think that experience motivated the Amendments–a movement which surprised Madison, who initially thought a Bill of Rights unnecessary. Even if inapplicable to the States–and I think many were vague on this–the Amendments were a protest against treatment during the war, more at local, let alone State, level. They were protest against what that war became. I think, above all, the Bill of Rights in its first eight Amendments is a call for the continual operation of the courts.

<pause> Writing from Paris, Jefferson told Madison he thought suspending the Writ a bad idea; the courts, he said, would be able to consider each case as it arose. But as President he asked Congress to suspend the Writ in the Burr Conspiracy; his own Party refused him. As I said earlier, more anomalous as writer than as President.

<pause> The question of original application is moot; it never happened. Flag burning may be instructive here.

Chairman Allred: The only way to stop him is to stop questioning. I don’t know what we’re going to be voting on anymore. Putting him on might be the most effective thing we’ve ever done to the Court.

Topoff: Effective for who?

Allred: Don’t think anybody’s clued about that.

Topoff: Finish it, Suzuki.

Suzuki: Yes, Senator. Patriotism has not been harmed by the occasional flag burning. Some have argued that tolerance on these matters has made a few more appreciative of the United States. But burning a Patriot flag during the Independence War would never have been tolerated by “revolutionary” authorities, partly because a significant background loyalist element was often present–or an exhausted, apathetic element which just wanted the war to go away. Flag burning might mobilize an opposition or, equally significant, frustrate Patriot policing and control of the allocation of local resources: such protest, gone unanswered, tempts others to refuse the Patriot’s agenda. Burning a flag in 1990 has no such impact. Government is massive and anonymous and persists regardless. Only memories are hurt by flag burning. A true harm, but a strange one. No conflagration of flags was expected after a few burnings. The burnings died out. Application of the First Amendment on this issue during the Independence War would not have worked, I think. Application today, even in this terrorism, will.

Topoff: It disrespects our soldiers in Iraq. It opens the wounds of those enduring loss.

Suzuki: The disrespect is of no consequence. The wounds of loss are real. But many things open such wounds. It is not for jurisprudence to control that. Consolation and protection on these matters are for social life. For the State to forbid burning of the flag is a false vengeance.

Topoff: Disrespect is of consequence. Those facing death for their country know this well.

Suzuki: Patriotism always boils beyond its need.

Topoff: Are you through, Suzuki?

Suzuki: That is for you to say.


Topoff: Recorder, go back a few minutes, to where Judge Suzuki began this discussion of flag burning. Read his first statement after that.

Recorder: Judge Suzuki: “Rights are potential, and all potential is a gamble. It is remarkable that the Bill of Rights has done us so well…”

Topoff: Stop. That’s enough, thank you. Judge, you would apply the Bill of Rights to Guantanamo. What do you expect to come of that?

Suzuki: Rights are potential. It is not just in the realization of a right that power comes. Each realization fuels potential–elsewhere. Those in Guantanamo are not in themselves important. Their grievances flicker briefly with less light that a firefly. It is the Court which gives them light beyond their lives. We do not value individuals for themselves; we rescue them for the burning glow they give, a glow ignited by the act of rescue, a light which travels beyond petitioner and Court, beyond memory capable of any man. Rights are always elsewhere. We struggle to implement them hoping next time we’ll do it complete. That’s their power: next time. We want that next time to fill the heads of people unseen.

What do I expect to come out of Guantanamo? I have no idea. Justice is ever at war with what creates it. A war of symbols. A Fifth Amendment hearing for a detainee is a symbol; release consequent of such a hearing is a symbol. Symbols which travel farther than our sight. What they do blind is where hope lies. I find it strange grace that as our rapacious arm lengthens so too does transmission of symbols. These latter fight among themselves to stay that arm or incite it to greater reach.

Topoff: You call the United States military a rapacious arm?

Suzuki: I call humanity a rapacious arm. We can but check ourselves in mid-act, knowing perhaps damage has been done.

Topoff: You are no Patriot, Benjamin Suzuki.

Suzuki: I am a citizen of the United States under the Constitution of the United States. I am a Judge. I believe in jurisprudence, although it can take monstrous steps into callous absurdity. But I believe it can, will recover when it does. I believe the ideas of centuries are not yet done. I believe in text.

Topoff: You would abandon our fighting men and women.

Suzuki: Justice’s job is to make that fight worthwhile. Those men and women don’t want to be there; they do their duty, yes, but they don’t want this. Is not empathy patriotic?


Topoff: Enough. All judges seem infected with a self-righteousness repugnant to the spirit which builds and maintains this country.

Suzuki: Not so. But I would venture that what builds a country is not always what maintains it, recognizing that both continue to the present.

Topoff: To maintain, Judge, is better than building?

Suzuki: The value of both ever changes. Justice lies with neither overlong.

Topoff: Mr. Chairman, I stop this man by ending my questions.

Chairman Allred: You lasted longer than I thought you would, Howard. Don’t let him convince you not to vote for him.

<confused laughter in the audience>

Allred: We’re done with you, Benjamin Suzuki. You have any final words to obfuscate and obstruct us with?


Suzuki: Placed before you my words acquire importance. Absent you, not. These days we have made a story, you and I. <pause> There are so many stories in the world. I wonder why we keep making more; certainly it’s all been told by now. Perhaps we keep making because we keep failing, deaf to the hearing, unable to remember all that has been made. We keep making so the potential of words will keep coming: it’s the next story that’s important, not the one we’re in. We’ll yet beat the failure of realized potential. Somewhere out there, we say, is a person doing just that.

I want to be your Justice. But a judge, in each act, each decision, is a failure of potential, a failure hoping to keep the potential of others afloat. It is the contending world which comes to court which is the hope and envy of the judge. I want to be your Justice. Somewhere out there, ever beyond my sight, is the reason why.


Allred: We’ll never be done with you, Benjamin Suzuki. These hearings are at an end.



Day breaks

no one knows why.

There we all stand.

Benjamin Suzuki

(Haiku delivered to Senator Joel Seger of Minnesota shortly after Suzuki’s confirmation)

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