Democrats were in a full-on panic over the prospects of another Trump appointee to the U.S. Supreme Court, even before they knew who the nominee would be. Republicans who held their noses while voting for Trump because they didn’t want Hillary Clinton appointing federal judges are celebrating their own good sense, even though they despair over Trump’s behavior.
Once there is a nominee there will be Judiciary Committee hearings at which senators from both parties will make long speeches, ask a few loaded questions, and vote on a strictly partisan basis. The Senate will then vote, again as partisans except for the few whose re-election might be at risk if they stick with their party.
Such is the state of federal judicial selection. Politics are everything because judges have come to be viewed as political arbiters — and not without reason. Over the just concluded term of the Supreme Court there were 13 decisions in which the five conservatives (counting Justice Anthony Kennedy) were in the majority and the four liberals were in the minority. There were also 19 unanimous rulings and 25 cases in which the court was divided with a mix of conservatives and liberals in the majority and minority. But the justices’ positions in the cases the public cares about (i.e. union dues, the travel ban, the free speech of bakers) were all too predictable even before the briefs were filed and oral arguments held.
For their part the justices explain their differences in terms of interpretive theory — the liberal wing embracing the idea of a living constitution to be adapted by judges to changing times and values, and the conservatives insisting that the rule of law requires adherence to original language and intent. But neither side is reliably consistent in its interpretive approach, with politics and personal values too often the most plausible explanations for deviations from claimed interpretive theory.
It is not difficult to understand the challenge judges face in maintaining strict objectivity in the application of their interpretive approach. They wield awesome powers over the lives of those whose disputes they resolve, often in the context of compelling human dramas. When adherence to the letter of the law allows the implementation of policies with which the judge disagrees or burdens people for whom a judge has special sympathies, it has to be tempting to bend or even ignore the law. But that is not the role of unelected judges in a democratic republic in which the separation of powers is a basic protection of individual freedom.
In an ideal world it would not matter whether a Republican or a Democrat appointed judges and justices because all judges would do their best to apply the law to the facts at hand objectively. Of course there would be disagreements about what the law requires, including in politically sensitive cases, but those disagreements would not consistently reflect the pre-appointment politics of the judges.
In the just completed term of the Supreme Court we would not have 13 cases in which the two sides look to the public more like representatives of political parties than judges intent on the rule of law.
There is no easy or obvious fix for this politicization of our federal courts. It would help if the editorial pages of our leading newspapers devoted their critiques to the legal reasoning rather than the policy implications of judicial rulings. It would also help if Congress reasserted its constitutional lawmaking authority by giving the courts more explicit direction and by rebuking the courts when they overstep their constitutional boundaries. And it would help if the judges themselves refused to let outcomes usurp the rule of law.
But as the Founders of our Constitution understood, there is no avoiding that judges, like every other government official, will be tempted to side with the interests of one faction or another. To the extent the framer’s constitutional constraints no longer work or have been weakened or abandoned, surrendering to temptation is all the more likely.
For now, sadly, it’s all politics, as it was with the nominations of Merrick Garland and Neil Gorsuch. Sen. Chuck Schumer’s call for a hold on the coming nomination until after the midterm elections is as disingenuous as was Sen. Mitch McConnell’s refusing to act on the Garland nomination so the voters could have a say in the presidential election. There is no real principle on either side.
Had Schumer been the majority leader facing a Republican president’s nomination, he would have done exactly as McConnell did. And McConnell would today be insisting that the voters should have a say in the midterm elections. As it stands the Republicans hold all the cards and, unless they are unable to hold their majority, whomever Trump nominates from his carefully curated list will be confirmed.
We may get some good judges, but their selection and confirmation is all politics, and that’s not good for the courts.
James Huffman is dean emeritus of Lewis & Clark Law School. He wrote this for InsideSources.com.