#LessigForSCOTUS
After reading the story by the self-professed liberal Lawrence Lessig honoring conservative Justice Scalia’s commitment to the principles of a Constitutional originalist, I sent him a quick question — SCOTUS: Would you serve if asked?
Re: SCOTUS: Of course but there is ZERO chance I’d be asked.
Was his reply.
The fact that a Harvard Constitutional Law professor — who clerked for Justice Scalia, who has a deep legal understanding of all the current pressing problems with intellectual property, copyright, digital privacy, and perhaps most importantly the corrupting influence of money in politics — would have ZERO chance of being asked is the ridiculous truth of our current politics.
We need to change that.
I have to admit that up until this point, every time that I heard or saw “overturn Citizens United, amend the Constitution,” I actually cringed a bit. Even though I fully supported a permanent solution, I knew that an amendment was going to take years and that it alone would not end the corruption in Washington. Without parallel legislative reforms to provide a public alternative to the massively corrupt private system and better lobbying regulations, an amendment would never be enough.
That is why when Lessig proposed running for president to pass a single act to fix democracy first, I was all for it. After years of listening and learning about the problems with corruption, here was a chance to define the solution in one single legislative act that could be passed right now. No amendment required.
Then the current political establishment decided to silence him with a swift bit of debate rule “Larrymandering” so that it was impossible for him to participate. The fight to fix democracy first was foiled once again. I went back to working on the next best thing, writing the act anyway.
Now, with the sudden and unexpected passing of Justice Antonin Scalia, an already deranged politics has been sent into an even deeper frenzy. Within hours of his announced death, political lines were already drawn in the sand. Never once even considering what Justice Scalia might think.
Lessig did, however, asking how Scalia — as a Constitutional “originalist” — would view Article II, Section 2, which states that the president “ shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”
For his part Lessig recalled how Scalia once said, “I don’t believe in an originalism of convenience.”
So from originalist view Article II, Section 2 plainly says: the president nominates and the Senate approves. There is no mention of an election year or any other timeframe. Just two mandatory jobs — nominate and approve.
Now, if the role of the Senate is to reflect the mandate of the people, then what actually is that mandate? Will a bitter and chaotic presidential election really provide the most clear and rational version? If we do have a mandate for the next Justice of the SCOTUS, then why don’t we just say who it should be?
Where the people stand on the first nomination that is made by the President may not be the deciding factor in the end, but let’s pretend for a minute that the Senate actually does represent the will of the people (instead of just a tiny group of elites). What kind of Justice would we approve?
Well, if we are truly citizens united against the oversized influence of money in politics, (over 80 percent of us are) and its corruption of government (75 percent of us find it widespread) then the very first nominee we make should be Lawrence Lessig.
Larry would have made a great president, but as a SCOTUS Justice, he has way better credentials. Having clerked for Judge Richard Posner, at the 7th Circuit in Chicago, Illinois, and Justice Antonin Scalia at the Supreme Court, Lessig is a highly respected mind among conservatives. Posner noted that “He [Lessig] was terrific, a tremendous worker who had a ferocious intensity,” going on to call Lessig “the most distinguished law professor of his generation.”
Since his time as a clerk, Lessig’s 107-page CV is testament to how that “ferocious intensity” has continued throughout his life’s work on issues that are incredibly important and complex. Lessig is not just qualified, his story is really something out of a Hollywood epic — telling the life of one America’s most heroic fighters for Justice.
At just four years older than Scalia was when he was appointed by President Reagan, Lessig represents an opportunity to revitalize a SCOTUS bogged down by an outdated understanding of how code, law, and information interact. He has a deep understanding of Citizens United and will ensure that Congress has a clear understanding of their role in reversing such a ruling. He is by every measure, the perfect nominee for serving the Constitution and the people.
Which is why anyone that has ever done anything to stop SOPA, fight big money, overturn Citizens United, end corruption, or anything else in support of citizen equality, should immediately ask the president to put Lawrence Lessig forward as a nominee.
We need independent, thoughtful, and dedicated defenders of democracy in the SCOTUS. For the biggest problems before us today, you will never find a better nominee than Lessig.
If you agree, then ask the POTUS to consider Lessig now, and then share your support.
Even if Lessig doesn’t turn out to be the right person, the principles he stands for are exactly what the SCOTUS needs (just imagine the confirmation hearings). If ever there were a moment to shift the balance towards our equality as citizens, now would be that time.
#LessigForSCOTUS
Bruce Skarin is the founder of EqualCitizens.US, a nonpartisan project to crowdsource three reforms by August 2016. Follow him on Twitter.
