Justice Scalia’s death has brought out what I believe to be the worst (although some strategists might consider the best) in our politicians. Even before the Justice’s funeral, some Republicans clamored to insist that President Obama cannot select Justice Scalia’s replacement. Not to be outdone, Democratic leaders such as Senator Elizabeth Warren scolded Republicans and argued that nominations by the President should not be blocked. This week, Merrick Garland, a centrist, highly qualified, 63-year old D.C. Circuit judge has been nominated. President Obama’s nomination appears to be either a concession to Republicans, an attempt to embarrass Republicans who stall hearings on Garland’s confirmation, or a smart offer to Republicans of an alternative to Hillary Clinton nominating a Justice who is much more ideologically (and judicially) liberal than Judge Garland.
Even for those inclined to view our politicians generously, unclean hands abound. The Republicans’ argument that “the people should decide” the next SCOTUS Justice is disingenuous. The Democrats, for their part, could make promises that allow these situations to be less political in the future. While the desire to avoid a Supreme Court Justice who undermines one’s constitutional (and political) ideals is understandable, and perhaps insurmountable, this current political battle is myopic.
Some Senate Republicans, such as Senate Majority Leader Mitch McConnell, have refused to even meet with Garland on Capitol Hill. His argument, that President Obama’s successor should choose the next Supreme Court Justice, would make some sense if the Supreme Court weren’t in the middle of a session and elections were sometime far prior to November. To avoid the Supreme Court nominations process devolving into such naked pretextual politics, a norm should be established that when a Justice retires or dies, the current President may nominate his or her successor. The people do get to decide the next Justice – the people who elected the President sitting when a Justice leaves. If a Justice departs during the next President’s term, then the group of people who elected the next President can speak through him or her to decide the next Supreme Court Justice.
This is where the Democrats can make this process much less ugly, but haven’t, perhaps for political reasons. As far as I know, no Democratic leaders have come out and said that, if this situation arises in the future, Democrats won’t stall a nomination until after an election. The lack of this sort of promise is, I believe, due to the fact that many Democrats would behave just as Republicans are now, given the reverse situation. The desire to block the nomination of a judge who would reverse Roe v. Wade, as one example, would be too great to resist for Democrats
Politics being what they are, and Supreme Court nominations being as significant as they are, this is understandable. Plus, some Republicans on the Hill are meeting with Garland, and some Democrats would likely not behave badly if the parties of the outgoing Justice and President were reversed. But the time has come for everyone to capitulate to a greater sense of principle. The Supreme Court has work to do. That work is, in many cases, already too politicized and results-oriented. Mixing politics with the literal process of nominations (quite independent of the politics of assessing the substance of the nominee’s qualifications) cannot help. We would all benefit in the long run from establishing norms around Justice retirements. These short term battles compromise all of our long term interests; the party in office switches fairly regularly and Justices are holding onto their Supreme Court seats despite advanced age and illness.
One other word about the nominations of Justices. Merrick Garland is not an ideologue. He has been compared to Chief Justice Roberts in his legal sharpness and ability to procure compromises. This profile of a Supreme Court Justice, a likely profile when the executive branch and legislative branch are controlled by different parties, has both benefits and downsides. I hope to write more about this topic in the future, but compromise judicial opinions, like compromise jury verdicts, can be legally nonsensical even if ultimately satisfying to more people in their result. I would like to see a mix of Justices, some purists/formalists/idealists and some centrists/pragmatists. This mix could allow the Constitution to be interpreted in a non-extreme way, while ensuring that legal decisions contain the analytic rigor often absent from political compromises. Fortunately, Judge Garland has been praised for his exemplary legal reasoning, and his ability to procure compromises may be due to his sharp legal mind, not his political savvy. Unfortunately, Judge Garland’s pro-prosecution leanings may further erode the constitutional rights of criminal defendants, but he is the right long-term solution for everyone.
Addendum: Because we don’t know how the Democrats would actually act given the reverse situation, there is a danger of setting up a false equivalence between Democrat and Republican behavior here. And there is a general norm of not blocking SCOTUS confirmation hearings, although both parties have not behaved well when it comes to lower courts judges. What I would like to see is some Democrats committing themselves to make this process less political in the future and really embracing the idea that political expediency is misplaced here. Offering that sort of promise would expose the Republicans’ shameful behavior and make the Democrats’ outrage seem more genuine.
Update: Two days after this blog was posted, on Meet the Press, Senate Minority Leader Harry Reid noted that, in four years, the Democrats would not try to stall the nomination of a Supreme Court Justice if the situation were reversed. This is the beginning of what I think the Democrats need to do to restore order and principle to this process. I am interested to see how the Republicans respond, although Senator Reid believes there will be a vote on Judge Garland. If the Republicans stall a vote until November, when it becomes more clear that they will lose the election, then not only will the Supreme Court’s business be impeded, but the Republicans will be wholly responsible for the cynicism and paralysis that infects our judicial appointments process.