On Tuesday, the Supreme Court heard arguments in a case asking whether families have the right to sue when a shooting occurs on Mexican soil. Fifteen-year-old Sergio Hernandez and his friends were playing chicken at the U.S.-Mexico border, daring each other to run up and touch the tall border fence.

Border patrol agent Jesus Mesa arrived and detained one of the kids on the U.S. side while the others ran away. Hernandez, having escaped, hid behind a pillar on the Mexican side. A cellphone video shows the boy peeking out from behind the column before Mesa shot and killed him.

The Hernandez family sued Mesa for damages, saying that the border agent violated their son's rights. The question facing the Supreme Court: Can foreigners sue for damages outside of the U.S. under our Constitution?

A ruling in favor of the Hernandez family might mean foreigners could also sue over drone attacks.

With the appointment of Judge Gorsuch pending, I looked into what cases were chosen by the court to be heard in this session. I saw this case and wondered how on earth a decision can be rendered when our Constitution doesn’t cover such an incident.

Much is made about the political bent of a Supreme Court appointee. I think we might be missing the intellectual and constitutional reasoning required by those serving on the court.

In a speech, just prior to the death of Justice Antonin Scalia, Chief Justice John Roberts told his audience, “… the process is not functioning very well. The last three justices should have sailed through. Look at my most recent colleagues, all extremely well-qualified for the court and the votes were, I think, strictly on party lines ... that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

I couldn’t agree more. I think it is outrageous that Judge Garland wasn’t put through the confirmation process because he was nominated by a Democratic president. And, I think it equally outrageous if opposition to Judge Gorsuch is delayed simply for political reasons.

Another ramification of politicizing appointments is that judges with Supreme Court ambitions might temper their lower court rulings hoping to be more “confirmable” to whichever party has the presidency. Our entire judicial system could be effected by this “Supreme Court litmus testing” trend.

The Court’s ruling in the Mesa case won’t be announced for months, but I think the complexity of the case perfectly illustrates why we need, not only smart Justices, but people who can interpret the constitution and apply its meaning impartially to circumstances our founders could never have foreseen.

This appointment to the Court is important — but not in a political party sense. We need an unbiased, constitutional scholar willing to put personal, political and ideological leanings aside. We’ve been blessed to have had some great justices in the past. Let’s hope our next justice will rank among them.

Wendy J. Levenfeld is a published novelist, playwright and columnist. Send comments to wendylevenfeld@gmail.com. Visit Wendy’s website at www.wendylevenfeld.com.

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