The Real Casualty? The Supreme Court

The real casualty in this dust-up over Brett Kavanaugh is the justice system, the Supreme Court and its place in our shredded democracy. As many op-ed writers and essayists have noted, the nomination, confirmation, and appointment to the federal bench has become politicized to the point where ideological purity now overrides judicial fitness. This is not what was in the minds of the framers of the Constitution. The Executive Branch was established within a political system as was Congress. From the outset, individuals who ran for these positions did so within the context of a political party whose positions on matters was public. But not the courts. Their role was to be the arbiters of what the other branches did, to evaluate the constitutionality of their legislation and executive orders, to determine the degree to which decisions made adhered to broad-based principles. 

Not anymore. Today candidates for positions on federal courts are sifted through a vetting process that searches for those with records of writings, speeches, and decisions that conform with the momentary ideology of those in power. This isn’t new. Roosevelt was so hamstrung by the conservatives on the Supreme Court in the ‘30’s that he tried, luckily unsuccessfully for it would have established a terrible precedent, packing the court with justices more in tune with the policies he was trying to put in place.

But it has reached a new and dangerous pitch in the past few years. A quick look back at the last half-century or so is instructive. Here’s who nominated whom since Eisenhower with tags on the justice’s record both before and while on the bench:

Ike — Republican

Earl Warren — liberal

 John Harlan — moderate liberal

Potter Stewart — liberal

William Brennan — very liberal 

JFK — Democrat

Byron White — moderate conservative

Arthur Goldberg — liberal

Nixon — Republican

Warren Burger — moderate

Harry Blackmun — moderate before, liberal on

Lewis Powell — moderate

William Rehnquist — moderate conservative

Ford — Republican

John Paul Stevens —  moderate, moved leftward

Reagan—Republican

Sandra Day O’Conner — moderate conservative

Antonin Scalia — very conservative

Anthony Kennedy — moderate conservative

Bush I — Republican

David Souter — liberal

Clarence Thomas — very conservative

Clinton — Democrat

Ruth Bader Ginsburg — liberal

Stephen Breyer — liberal

Bush II — Republican

John Roberts — conservative

Samuel Alito — very conservative

Obama — Democrat

Sonia Sotomayor — very liberal

Elena Kagan — very liberal

Trump — Republican

Neil Gorsuch — very conservative (so far) 

Until Clinton there was no ideological link between the justice and the party of the president who made the nomination. Eisenhower was a Republican, a moderate one to be sure, but all four of the justices he put on the court took moderate to liberal positions. And this nonpartisanship continued. Kennedy nominated White, a Republican with moderate views. Nixon put four justices on the court, all were moderate or liberal. Interestingly Powell drifted toward progressive positions over the years as did Burger, though to a lesser extent. Ford nominated Stevens who started moderate and moved leftward. Reagan adhered to party lines in putting forward three conservative names though only Scalia could not be viewed as moderately right-leaning. His so-called “originalism” sometimes led him to align with the liberals. Poppa Bush put two dramatically different justices on the court. Thomas started as fiercely conservative and never wavered. Souter became a liberal icon.

And then it changed. Clinton taps only liberal justices; Bush II only conservatives; Obama names two very liberal women. But even though these nominations were party-bound, the ideologically linked trends weren’t blatant. They weren’t genuinely political in the sense of say Roosevelt’s efforts to thwart the tilt of the court he inherited. They were much in kind with previous nominations and received bipartisan support during the confirmation process.  

Ike was a moderate to liberal Republican (in fact he was approached by both parties to see if he would run as their standard-bearer). JFK was no flaming liberal. Nixon, despite being a crook, actually held views that would make him a pariah in today’s GOP. And so it went until today. Today the court system in America is in deep trouble and the culprit is the Republican Party and the miscreant at the heart of it is Mitch McConnell. The announcement that the Republican dominated Senate would not even hold hearings for the eminently qualified Merrick Garland was the point where the integrity of the American justice system came under attack, where the shiv was slipped in between the ribs. This was when the judicial skills and the record of legal scholarship stopped being the primary concern and the ideological clarity of the potential justice became paramount. What McConnell really said that day was, “There won’t be any more liberals on the damn court if I have any say in this.”

Where we go from here is uncertain. What will emerge from the Kavanaugh episode is still unknown. I suspect there will be a continuation of this battle of ideologies. Trump will certainly continue to look toward the Federalist Society for future nominations. Any Democrat who succeeds him in 2020 or beyond will likely look toward individuals with firm progressive records. The days when the true litmus test was the richness and scholarly depth of a potential jurist’s record are gone. As with Kavanaugh, the primary consideration is how ideologically pure is the individual and, once that’s been determined, then and only then will they ask, is the record strong enough to get through the confirmation process.

Comments

[John Clark]

Arthur, It is reassuring to see you once again back on the bridge monitoring the looming iceberg. I have missed your clear and lucid thoughts on current events in recent months. Somehow, I knew you wouldn’t stay mute on the situation for long.
Faithful Canadian readers,
John and Zoë

[Arthur]

TY JC. Dumping my thoughts these days mainly on Facebook.