Politics in court system a disturbing trend
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.