It’s perversely fitting that a Supreme Court whose members now vote as legislators rather than rule as jurists sees a nominee held up on the grounds that the people should decide the next justice on Election Day. Lawmakers, even de facto ones, require a vote.
President Barack Obama nominated Merrick Garland to replace the late Antonin Scalia on the Supreme Court this week.
Republican Senators predictably declared the nomination dead on arrival. And just as predictably, Obama, and other former Democratic Party upper-chamber colleagues who also attempted to filibuster Samuel Alito and reflexively voted against John Roberts, now label opposition as obstructionism.
The party that deep-sixed the nominations of Clement Haynsworth, Harrold Carswell, and Robert Bork seems to lack standing to complain about senators refusing to grant consent to a high court pick based on politics. The fact that one must go back to the 19th century to identify a nominee of a Democratic president voted down by the Senate (and even in that case a Democrat led the fight against the ill-fated nominee) further makes the characterization of the Republican Party as inflexible on the opposing party’s Supreme Court nominees farcical (or perhaps more specifically, projection).
Elephants never forget. Donkeys never remember. So, this record likely falls down the memory hole in the current debate.
The politicization of the court necessarily unleashed an extreme politicization of the nominating process. The people who now complain about the latter problem do everything to worsen the former problem. Garland’s record of knee-jerk favoritism for government regulators over private enterprise, for labor unions pitted against employers, and for the policy of gun control versus the clear language of “the right of the people to keep and bear Arms, shall not be infringed” all signal a future of ruling on whim rather than law on the Supreme Court.
Why not vote on his nomination the way he votes on cases?
Like all liberal nominees to the court, Garland morphs into a “moderate” (NPR), a “centrist” (Reuters), and “pragmatic” (Huffington Post) with no rigid ideology once the judge faces his judges in the Senate. Even when Republicans nominate actual centrists, or even liberals, journalists presume them right wingers (“Conservative Picked for Court,” read the Chicago Tribune’s headline upon David Souter’s nomination). A Slate article honestly assesses Garland as a liberal likely to shift the court left. But elsewhere, progressives at once strangely maintain Garland’s moderation as they can’t contain their immoderate praise for him.
Do ideologues generally gush over political figures decidedly outside of their own camp?
Antonin Scalia, despite his reputation as an arch-conservative, sided with a marijuana grower in Kyllo v. United States, a flag burner in Texas v. Johnson, and a rapist forced to provide a DNA sample to police in King v. Maryland. In other words, he consulted law rather than his gut to make decisions. On abortion, Obamacare, gay marriage, and other hot-button issues before the court, Democratic appointees vote as a group and rarely surprise.
The transformation of a legal body into a political one can’t but compel senators to vote on nominees based on ideological concerns. No bloc on the court contends that states must ban gay marriage, outlaw abortion, or require citizens to carry guns. Yet half of Supreme Court justices fanatically believe nearly the reverse to be true — that all states must offer gay marriage and permit abortion, and be allowed to override the Second Amendment if they choose. Allowing voters and elected officials to decide these questions, even when their choices annoy men and women in black robes, would act as a start to depoliticizing the nominating process. But Merrick Garland and his supporters, who now want politics out of the appointment process, don’t ever want it out of the decision-making process.