Pol­i­tics in court sys­tem a dis­turb­ing trend

The Hazleton Standard-Speaker - - OPINION - BY GENE MILLER

In sev­eral weeks, the U.S. Se­nate will be the set­ting of an in­tense, prob­a­bly bit­ter de­bate. The sub­ject: whether to con­firm the nom­i­na­tion of Brett Ka­vanaugh, Pres­i­dent Don­ald Trump’s lat­est selec­tion to be an as­so­ciate jus­tice of the Supreme Court.

The larger ques­tion, how­ever, is the in­creas­ing politi­ciza­tion of the court and, by ex­ten­sion, the Amer­i­can ju­di­cial sys­tem it­self. This ten­dency, while hardly new, has be­come much more pro­nounced in re­cent years. For those con­cerned about jus­tice — which should be all of us — this is a dis­turb­ing trend.

In re­al­ity, pol­i­tics has long played a sub­stan­tial role in Supreme Court nom­i­na­tions go­ing back at least to the pres­i­dency of An­drew Jack­son dur­ing the 1830s. Per­haps the most no­to­ri­ous in­stance was the “court-pack­ing” scheme pro­moted, un­suc­cess­fully, by Franklin D. Roo­sevelt in an ef­fort to neu­tral­ize the court’s dis­al­lowance of some of his New Deal leg­is­la­tion. But es­pe­cially since the early 20th cen­tury, both Demo­cratic and Repub­li­can pres­i­dents have rou­tinely cho­sen nom­i­nees whose po­lit­i­cal at­ti­tudes they deem con­ge­nial.

Pres­i­den­tial pref­er­ences haven’t al­ways worked out, though. Earl War­ren turned out to be a more “ac­tivist” chief jus­tice than Pres­i­dent Dwight D. Eisen­hower likely an­tic­i­pated. By­ron White proved to be more con­ser­va­tive than Pres­i­dent John F. Kennedy ex­pected. Con­versely, Pres­i­dent Richard M. Nixon did not fore­see Harry Black­mun’s lib­eral in­cli­na­tions.

Both San­dra Day O’Connor and Anthony Kennedy be­came rel­a­tive cen­trists, prob­a­bly dis­ap­point­ing the man who chose them, Ron­ald Rea­gan. And Ge­orge H.W. Bush was fu­ri­ous that his ap­pointee David Souter voted con­sis­tently with the court’s lib­eral wing.

More­over, some nom­i­nees have been re­jected as too po­lit­i­cally con­tro­ver­sial. Nixon had two south­ern can­di­dates shot down be­cause of their ear­lier ju­di­cial rul­ings but­tress­ing racial seg­re­ga­tion. And an­other Rea­gan selec­tion, Robert Bork, had too much po­lit­i­cal bag­gage to sat­isfy most Democrats and some mod­er­ate Repub­li­cans in the Se­nate.

But par­tic­u­larly since the early 1990s, the ide­o­log­i­cal lit­mus test for court nom­i­nees has been far more thor­ough, leav­ing lit­tle to chance. Since the choice of Clarence Thomas in 1991, all ap­pointees have lived up to the po­lit­i­cal ex­pec­ta­tions of the pres­i­dents who se­lected them. In ef­fect, they have be­come po­lit­i­cal in a near-ab­so­lute sense.

In prac­tice, whether a Supreme Court jus­tice will rule fairly, dis­pas­sion­ately and with in­tel­lec­tual hon­esty has be­come a sec­ondary con­sid­er­a­tion to his or her per­ceived po­lit­i­cal re­li­a­bil­ity. Politi­cians, the me­dia and other court-watch­ers au­to­mat­i­cally as­sume this will be the case. Many ob­servers feel this trend came to fruition with the court’s rul­ing fa­vor­ing Ge­orge W. Bush fol­low­ing the dis­puted 2000 pres­i­den­tial elec­tion.

There are other ex­am­ples of the pre­dom­i­nant role of pol­i­tics in this process. In 2016, Pres­i­dent Barack Obama’s nom­i­na­tion of Mer­rick Gar­land was stymied be­cause Se­nate Repub­li­cans re­fused to al­low con­fir­ma­tion hear­ings even to take place. The is­sue was not Gar­land’s qual­i­fi­ca­tions, or in­deed his po­lit­i­cal opin­ions, but whether a lame duck pres­i­dent should en­joy the po­lit­i­cal “priv­i­lege” of a Supreme Court ap­point­ment prior to a pres­i­den­tial elec­tion, which the GOP hoped to win. In the event, Trump’s vic­tory showed it to be a clever — if con­sti­tu­tion­ally ques­tion­able — tac­tic.

And with re­spect to the forth­com­ing Ka­vanaugh hear­ings, most Repub­li­cans have let it be known that they will sup­port him, while many Democrats have al­ready an­nounced that they in­tend to vote against him. One won­ders why they need even bother hold­ing con­fir­ma­tion hear­ings at all. “Po­lit­i­cal cir­cus” is per­haps a more apt de­scrip­tion of what’s about to hap­pen.

What’s wrong with this pic­ture? Ac­cord­ing to the fa­mil­iar maxim, “jus­tice is blind.” But maybe we’re the ones who need to have our eyes ex­am­ined. In the con­text of to­day’s ju­di­cial selec­tion process, the old adage has be­come a joke. There was a time when peo­ple ar­gued over whether wouldbe jus­tices were “strict” or “loose” con­struc­tion­ists, re­fer­ring to how lit­er­ally they in­ter­preted the Con­sti­tu­tion. These terms are rarely heard nowa­days. In­stead, the proper buzz words are “con­ser­va­tive” or “lib­eral,” which have them­selves be­come code for a spe­cific, and pre­dictable, po­lit­i­cal po­si­tion.

In an ideal world, jus­tice should be apo­lit­i­cal. It should not be pre­de­ter­mined by a highly so­phis­ti­cated vet­ting process that re­flects with al­most sci­en­tific pre­ci­sion the po­lit­i­cal in­ter­ests of an ap­point­ing pres­i­dent. Whether that pres­i­dent is Don­ald Trump or Bill Clin­ton, Barack Obama or Ge­orge W. Bush, the prin­ci­ple is the same: The ju­di­cial sys­tem must be above pol­i­tics, not be­holden to it. Nei­ther jus­tice nor the in­ter­ests of the Amer­i­can peo­ple are served when that prin­ci­ple is dis­re­garded.

So much for our cur­rent predica­ment. Can any­thing be done about it? That’s more prob­lem­at­i­cal, but we’ll give it a try next week.

GENE MILLER taught his­tory at Penn State Hazleton from 1969 to 2004 and still re­sides in the area.

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