Rising above factionalism

EVEN though the Supreme Court has been an active player in American politics – Bush vs Gore leaps quickly to mind – the process of choosing its members has been seen as mattering more than the partisan combat in Congress. With rare exceptions, nominees to the court have been largely insulated from the escalating political warfare over the judiciary, and have been approved.

Now, however, partly as a result of its own actions, but more important as a result of increasing polarisation in Washington and the nation as a whole, the court is devolving into a nakedly partisan tool. How did this happen? Some of the blame rests with the Democrats. Many of them over the years have played to their base by casting cost-free votes against Republican nominees.

Republicans like to say that Democrats’ 1987 blocking of Robert Bork marked the beginning of the politicisation of Supreme Court nominations, but Democrats did give Bork a vote. The polarisation of the court itself, with a pronounced rightward swing among its conservatives, has also helped turn confirmations into political battles.

But the lion’s share of the blame now belongs to one man – Mitch McConnell, the Senate majority leader. In blocking even a hearing for Judge Merrick Garland, President Barack Obama’s moderate and eminently qualified candidate, as well as dozens of Obama nominees for other positions, he deeply degraded the nominating process. His determination to steamroll and humiliate political opponents exceeds any other consideration.

What matters, of course, is that Americans believe they are governed by law, not by whatever political party manages to stack the Supreme Court. It may, in the end, fall to the court itself to find a way to rise above the encroaching tide of factionalism.