Nominating a justice brings out the lowest type of politics
WASHINGTON — There is always a secret relief — even, I imagine, among his supporters — when President Trump does not do something random and imprudent . ... (But in the) selection of a Supreme Court nominee ... even the chaos president is tightly constrained. A favorable Supreme Court is the single, non-negotiable condition social conservatives have placed on their support. The president has said he could “stand in the middle of Fifth Avenue and shoot somebody” and not “lose any voters.” But if he stood in the street while appointing a David Souter, he would become political roadkill.
The focus on Supreme Court nominations is related to ... the 1987 battle over the nomination of Robert Bork to the Supreme Court. Democrats threw out the rulebook of decency, honesty and fairness, smearing and defeating a conservative hero. The result was President Reagan’s choice of Anthony Kennedy, the swing vote who upheld abortion rights. The moral? To get nominees who respect the highest constitutional principles, be prepared to practice the lowest of politics.
Democrats have their own thick catalogue of complaints — now featuring the shabby treatment of Merrick Garland — that they think justifies anger and ruthlessness. But the main reason Supreme Court nomination battles are such spectacles of bitterness is the role the court has assumed in our public life. What Alexander Hamilton called “the least dangerous” and “weakest” branch of government has become the main stage of the culture war, dealing with sexual preferences, family makeup and the value we place on life. In many cases, the legislative branch has been relieved to be relieved of these issues. But the result has been to raise nine mortals to Olympus and exponentially increase the stakes of nomination battles.
This is a large part of what provoked and distorted the return of religious conservatives to politics — a reaction to the aggression of liberal courts. Conservative Christians became politically active — good — but too reactive and overly focused on sex. It left them without a comprehensive vision of human dignity and vulnerable to the single-issue appeal of political con men. It is neither thoughtful nor faithful to associate Christianity with a leader’s racism, sexism and cruelty as long as he chooses judges from the Federalist Society list.
But the culture-war context of Supreme Court nominations has also distorted a serious discussion of constitutional interpretation. Conservative thinkers advocate originalism and judicial restraint. We have a Constitution to tie our political practice to an impartial text. We make the interpreters of the Constitution subject to the words of the Constitution. And self-government requires judicial deference to democratic choices, except when constitutional rights are violated.
But these principles come with a few caveats: First, it is not meaningful to talk of a simple or single meaning for a document that resulted from difficult compromises . ... Second, America effectively had two sets of Founders: those who wrote and approved the Constitution and those who wrote and approved the 14th Amendment, which corrected a near-fatal flaw in the document . ... Third, the principles of originalism and deference to democracy are sometimes in tension. If a judge feels the law has strayed badly from constitutional principles, he or she will be less likely to embrace judicial modesty . ...
Choosing the right person to prudently navigate these challenges is massively important. But our democracy would probably be healthier if the stakes were lower — if difficult issues were returned to the democratic realm and the court descended from Olympus.