Chicago Sun-Times

Get ready for ‘ umpire myth’ after Scalia’s death

- BY SUSAN BANDES Susan Bandes is the Centennial Distinguis­hed Professor of Law at DePaul University and a 2016 Public Voices Fellow of The Oped Project. FILE PHOTO | RON EDMONDS/ AP

The grief, praise and criticism that followed the death of Antonin Scalia on Saturday were quickly followed by two contradict­ory reactions. We were admonished that it was too early to talk politics. And at the same time, we were treated to some real political hardball.

Sen. Mitch McConnell, R- Ky., staked out his political position quickly: President Obama should not nominate anyone: “The American people should have a voice in the selection of their new Supreme Court justice.” He vowed to block any nomination­s, despite the fact that there are more than 300 days left in Obama’s presidency.

Notice what McConnell is saying here: The new justice should reflect the views of the nation. In other words, judicial ideology matters. A judge’s background, view of the world, and political beliefs— all of these should be on the table.

But once the confirmati­on hearings begin, most senators will be trying to sell a different story. Chief Justice John Roberts put this view most memorably during his own confirmati­on hearings when he promised with a straight face that his positions on various issues— which were uniformly conservati­ve— were irrelevant to what he would do on the bench.

As he explained: “Judges are like umpires. Umpires don’t make the rules, they apply them… They make sure everybody plays by the rules, but it is a limited role.”

During those hearings, we were told that the only legitimate way to evaluate a candidate is by looking at whether he is a talented lawyer, an ethical person, good at the “craft” of law.

But no legal profession­al actually believes the myth of the umpire judge. We can predict nearly every Supreme Court vote in advance, based on the transparen­t political views of the justices in question.

Chief Justice Roberts, who said he only wanted to call balls and strikes, almost always votes exactly the way you think he would. His behavior before he ascended the bench actually told us what we needed to know about how he would act on the bench. And that’s fine, for those who share his ideology.

What is not fine is the lie that the American people are told at confirmati­on hearings— that beliefs don’t matter.

This fantasy exists to distract us from the real questions about what judges believe and how it will affect their jurisprude­nce. The Supreme Court is always a political body, and its justices have divergent views about their mission. Some think the court has the duty to protect the powerless because the system won’t protect them. Some think the Court should help minorities who have long suffered discrimina­tion. Some think national security should trump individual privacy nearly every time.

These are the nakedly political questions that go to the heart of our democracy. We deserve confirmati­on hearings that delve into them without apology, and don’t condescend to us based on fictions about a non- political court.

McConnell will soon be crying alligator tears for a nonpolitic­al hearing, but for now, he’s speaking the truth: the American people deserve a voice.


 ??  ?? Late Supreme Court Justice Antonin Scalia.
Late Supreme Court Justice Antonin Scalia.
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