THE SUPREME COURT: POLITICS VS. PRINCIPLE ON BOTH SIDES AS USUAL

It should be clear to even the most casual observer that the selection process i.e.

 nomination and Senate approval of Supreme Court Justices is, and always has been, a political process, that is, a shared responsibility between the executive and legislative branches of government inevitably characterized by partisanship.  Presidents pick nominees who they believe will enhance or protect their ideological orientation and political preferences, both past and future. The Senate’s Constitutional responsibility to “advise and consent” to the President’s nominations usually but not always, follow the partisan preferences of the majority party.

Twenty-seven of the nation’s 44 presidents, in every decade since George Washington whose nomination of John Rutlidge failed by a vote of 10-14 in 1795, have had nominees fail in some respect, mostly by politically motivated rejection by the Senate vote.

Numerous examples in the modern era support this fact.

Franklin Roosevelt’s famous (or infamous) attempt to not only appoint justices who would support his New Deal program but to increase the number of Supreme Court justices to give him supporting majorities was called “ the Court Packing” scandal.

The nomination of Robert Bork in 1987 by President Reagan was a blatant exercise in ideological/political conflict.  The opposition raised by liberal Democrats was vicious.  Senator Ted Kennedy’s  over the top comments before the Senate best describe the hysteria driven by abortion proponents  fearing that Bork would seek to overturn the Roe vs. Wade decision of 1973. Kennedy described Bork, a prominent legal scholar and sitting judge on the District of Columbia Court of Appeals thusly:

         "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids..." 

His defeat by liberal Democrats even resulted in the creation of a new verb to describe the political assassination of future nominees  i.e. “Borking”. 

In 1991, George H.W. Bush nominated federal judge Clarence Thomas to the Supreme Court.  Thomas, an African American was to replace the retiring African American civil rights icon, Justice Thurgood Marshall. This in itself was an obvious political move by Bush as it was seen as politically necessary to maintain a “black seat” on the Court.  But the liberal supporters of such a requirement were taken aback by the fact that Thomas was a “strict constructionist”, a legally conservative viewpoint, and again was portrayed as opposed to Roe vs. Wade and to race based affirmative action.  

Statements were made that he would be “Borked” and an effort to do just that was made by the appearance of a former legal associate of Thomas’s who claimed that he sexually harassed her.  Her credibility however was insufficient to derail his appointment although he barely survived with a 52-48 vote.

Now with a controversy brewing over the replacement of recently deceased Associate Justice Antonin Scalia, it is no surprise to see it driven by ideology and politics.  Republican Senate Majority Leader Mitch McConnell made his position clear:

            ““The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

This is pretty clear.  McConnell is holding out the hope that the Republicans will take the White House in 2016 and replace Scalia with another conservative; there's no hiding the political motives.

The Democrats aren’t hiding theirs either but are trying to.

Here’s the Left wing Huffington Post:

                “ the assertion that this entire year has become off-limits to filling a Supreme Court vacancy has no constitutional basis; it would also harm the Court itself as well as devalue the votes cast for Mr. Obama in 2012.”

Of course a delay in considering a Supreme Ct. nomination has no “constitutional basis”.  That’s because the Constitution contains no timing provision for the process, one way or the other.  How such a delay would “harm the Court itself” is not explained.  If it somehow “devalues the votes cast” for Obama in 2012 then that is simply a political tactic so common in the nomination of Supreme Court justices and not much different than a vote of rejection by an opposing party majority in the Senate.

Huffpo continues:  “And McConnell's partisan obstruction should now be seen by everyone for exactly it is.”

Correct, and they do; just like the twenty-seven historical “partisan obstructions” cited above.

 “The American people should not countenance this effort to hamstring the Supreme Court and its critical role in our nation for a year or more.” the Post continues.

This of course isn’t credible. The Court will continue its usual schedule with eight instead of nine Justices.  This isn’t unheard of since it is not unusual though, fairly uncommon, for a sitting Justice to recuse himself if he has had a prior interest in a case, thus allowing the remaining eight to decide. Clearly the Court will not be “ham strung”.

Senate Minority Leader, Democrat Harry Reid has also predictably weighed in:

           

            “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”

But the Senate is under no Constitutional responsibility to fill a vacancy with any particular nominee and the process can take as long as needed.

The Democrat’s sense of urgency is just as based on ideological/political motives as is the Republican’s reluctance to proceed.

This  reluctance , while motivated by partisanship is understandable.  President Obama has already secured the nomination of two Supreme Ct. justices.  Both have turned out to be reliably liberal. These two women are also relatively young by Supreme Ct. standards and will serve for decades under the Courts life-time tenure.  There is no reason at all to think that Obama would not nominate another “young” liberal in an attempt to create a semi-permanent ideological bloc on the Court. 

Obama’s “executive order” disdain for the legislative component of the “separation of powers” concept enshrined in the Constitution is a further “red flag” to a further reconstruction of the Court by him.

In fact, Obama and his surrogates are not in a good position to lecture the Republican Senate regarding their "constitutional responsibility". Obama has violated the Constitution's requirement that he, as President "take care to faithfully execute the laws".  He refuses to enforce the federal laws regarding the sale and possession of marijuana.  He uses "executive orders" to legislate in violation of existing federal laws regarding immigration.  He uses "regulations" to legislate i.e. EPA requirements, to kill the coal industry. 

While Obama has announced his intention to go ahead and submit a nominee to the Senate, this would also be based on political motivations. The Senate Judiciary Committee could simply postpone hearings which the President would than use as an attempt to demonize the Republicans in this election year.  Or if the Committee agreed to hearings but the Senate majority rejected the nominee, who might well be a minority or female, the Democrats will use the predictable political claims of misogyny or racism for that purpose.  But why put a nominee through the arduous process only as a political tool?  If the Republicans in the Senate say there is no hope until after the election anything else is just another political exercise no better than the Republican delaying tactic.