Today’s partisan wars over the judiciary are not good for the republic. The right answer is to return judges to their intended role. A second best would be to end life tenure for Supreme Court appointees.
In a perfect world, assessing a judge’s qualifications would be relatively easy. Jurists must assess disputes — some factual, some statutory, some constitutional, some treaty, some other. The most important questions to be answered are relatively obvious. Who did what? What does the law, both statutory and constitutional, say about that conduct?
When interpreting the law, the focus of appellate courts, jurists should decide what the law is, not what it should be. Of course, answers aren’t always easy, since legislators sometimes (often?) don’t always write clearly. Simple words may be used to describe complex subjects. A mixture of motives may go into passing legislation and constitutions. New measures sometimes conflict with old statutes. Applying old principles to new circumstances, behaviors, and technologies may break new ground and require new thought.
There even are different views as to what constitutes original meaning. Is it the text alone? What those who drafted the provision thought? The common, public understanding at the time? Or some mixture?
Whatever the exact details, however, some form of “originalism” should be the foundation of legal interpretation. In broad sweep jurists should be committed to respecting and implementing the initial political compromise. If that understanding no longer fits circumstances, then the law or constitution should be amended by the people, not reinterpreted by the judges.
It violates common sense and legal fidelity to decide that a law means something that it never claimed to say. In such a case it would be better to save time and effort and dispense with the law or constitution entirely, rather than pretend to interpret the text. At least there would be no need to torture words and histories to justify “modern” meanings. Judges could just vote yea or nay on current controversies, like the super-legislature so many courts have become sub rosa. Then the role of modern courts would be clear to all — which, of course, is precisely why jurists who yearn to legislate almost always obfuscate with faux legal interpretation.
The politicization of jurisprudence is evident in the public reaction to Ruth Bader Ginsburg’s death and GOP plans to fill her seat. She was a fine jurist and admirable person, but so was Antonin Scalia. Yet press coverage of their deaths was quite different. One was described as a divisive justice who offended those dedicated to all that was good and right. The other was described as a justice dedicated to all that was good and right. Their famous friendship was mutual, yet it received far less attention when he died.
This bias was evident in the respectful, even reverent, treatment of Ginsburg’s wish that her seat not be filled “until a new president is installed.” Of course that was her position. What Supreme Court justice wants their successor to advance a radically different jurisprudential vision? No doubt Scalia would not have wanted his replacement chosen “until a new president is installed.” Yet his well-publicized expression of that view would not have moved a single progressive analyst, pundit, activist, lawyer, jurist, legislator, or presidential candidate. It wouldn’t have stopped President Barack Obama from nominating Merrick Garland. And for good reason. No public official, irrespective of ideology, is empowered to choose how they will be replaced or who will replace them.
As has been much noted, Republican politicians are hypocrites. No surprise there. However, so are Democrats. For instance, Senate Minority Leader Chuck Schumer recently opined, “It is our solemn duty to set aside our ambition to remake the court and patiently await the outcome of the people’s decision.” Fine sentiments, and the world might be better if we took them seriously. But that is not what he said four years ago. Having insisted that the president was right to make an appointment in an election year, he and other Democrats now contend that the chief executive should not do so. Democrats and Republicans have simply swapped sides.
Schumer went even further when he charged that the GOP majority “will have stolen two Supreme Court seats four years apart using completely contradictory rationales.” Yet he presumably believes that one of the two justifications was correct. Either the seat should or should not be filled in an election year. Thus, Schumer used “completely contradictory rationales” to claim the Democrats were denied a seat because the incumbent president couldn’t fill the seat and now are being denied a seat because the incumbent president intends to fill the seat. Schumer can’t have it both ways.
Moreover, there is a narrow lawyerly difference, cited by Senate Majority Leader Mitch McConnell: the same party now controls the presidency and Senate. It is a fine distinction, but it changes the appointment process. Before 2016 the last presidential/Senate partisan divide and election-year Supreme Court vacancy occurred in 1956, when judicial appointments occasioned little controversy. (You have to go back another 70 years to find the previous instance, under President Grover Cleveland.) Were the positions reversed, Democrats undoubtedly would have been the careful line-drawers.
It is reasonable to either support or oppose election-year appointments, but today’s pols shift their positions as political advantage warrants. Both parties staged ever-so-convenient procedural pirouettes with equal enthusiasm. No one has clean, principled hands. Everyone is playing politics at its purest and toughest. The GOP has the advantage because it holds a narrow Senate majority at the critical time.
Much has been said about norms, which Republicans are ignoring. Yet norms are rather like pornography: political partisans seem to know them when they see them, and, not so coincidentally, benefit from them.
There once was a norm that qualified nominees for the high court received bipartisan support. That was most conclusively broken by Democrats. The rejection of Robert Bork, of whose jurisprudence I was not a fan, helped inaugurate a new era. And that partisan difference has continued. The closest vote on one of the sitting justices chosen by a Democratic president was Elena Kagan at 63-37. Sonia Sotomayor came next at 68-31. Republican nominees Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh all had much closer votes.
Another broken norm is litmus tests. When Ronald Reagan ran in 1980, Democrats complained that the Republican Party platform set a willingness to overturn Roe v. Wade as a judicial “litmus test.” If it was, the GOP obviously didn’t meet it. Now Democrats have ostentatiously set fidelity to Roe, indeed, to the most extreme conception of abortion “rights,” as their litmus test.
And abortion partisans have done so in a purely result-oriented way. They demand that the decision be upheld without offering a coherent constitutional or jurisprudential justification. The reasoning does not matter, only that the right be affirmed.
Yet when Roe was decided in 1973, even many liberal lawyers were critical. A constitutional provision passed when abortion was restricted across America and which no person at the time believed created a right to abortion was held to overturn the laws of 50 states. Yale’s Professor John Hart Ely, who supported legal abortion and went on to become dean of Stanford Law School, wrote that Roe was wrong “because it is not constitutional law and gives almost no sense of an obligation to try to be.” The point is critical: the decision, however justified, was in effect a policy choice and legislative enactment, not constitutional interpretation.
As for appointments in election years and involving lame-duck politicians, presidents typically sought to fill such vacancies. But 2016 was the first presidential election year vacancy with a partisan divide in the new era of contested judicial nominations, so the GOP’s hardball approach was unsurprising. Moreover, the Senate could have rejected President Barack Obama’s nominee on ideological grounds, as Democrats did with the candidacy of Robert Bork.
Lame-duck congressional sessions are especially problematic because defeated legislators are no longer accountable to voters. A sizeable, retroactive pay increase was the result of one such session decades ago. Nevertheless, the U.S. started early with lame-duck appointments. The second president, John Adams, after his defeat by Thomas Jefferson, nominated John Jay and then John Marshall as chief justice (Jay declined the appointment). The lame-duck Senate Federalist majority approved Marshall. The lame-duck Congress also passed the famous “Midnight Judges Act,” which added 16 judgeships, all filled by Adams (the subject of the famous Marbury v. Madison decision, which established the principle of judicial review), and dropped one Supreme Court seat, to prevent a Jefferson appointment.
Thus, the Federalists made today’s GOP look restrained. Democrats now claim to highly value precedent, but probably not this one, favoring lame-duck appointments. Of course, having the legal authority to do something does not make doing it wise. Some observers acknowledged that the GOP president and Senate are authorized to fill Ginsburg’s seat while urging the majority to exercise restraint to promote bipartisanship and civility in the judicial wars.
That is a worthy objective, especially in today’s divisive political environment with an impending presidential election. But what is the chance of reciprocity, without which such a gesture would be unlikely to strengthen democratic norms and institutions? Not much. Democrats long ago turned judicial confirmations into pitched political battles.
Rather than fairly criticize Bork on his jurisprudence, which could have yielded a useful debate on competing judicial visions, Sen. Ted Kennedy transformed Supreme Court nomination battles with his vicious fusillade:
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 citizen’s doors on midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the door of the Federal courts would be shut on the fingers of millions of citizens.
As for procedures governing nominations, Democrats filibustered well-qualified Circuit Court choices by George W. Bush. When Republicans returned the favor under Barack Obama, the Democratic majority eliminated the filibuster for lower federal court appointments. Majority Leader Harry Reid did not address Supreme Court nominees at the time only because none were blocked by a filibuster. No one doubted that he would take the same step in the future if necessary to force a high court confirmation.
Instead, the GOP took control of the Senate and the new majority dropped the filibuster for Supreme Court appointments in 2017. No one was surprised. Obviously, no majority will limit itself if its opponents won’t agree to live by the same restrictions. Having sowed the wind, Democrats now are reaping the whirlwind.
The future could get much uglier if Democrats take control and implement more radical proposals to transform the political system and pack the courts. However, that was a possibility even before the Barrett nomination. Democratic candidates and legislators, backed by the energized activist base, were calling for such steps even before Ginsburg’s death because of Trump’s success in filling existing judicial vacancies. The latest nomination is just another round in a partisan battle already long brewing. Unfortunately, political discord continues to grow, and both parties have contributed to the problem.
Rather than hope for a voluntary rebirth of civility, judicial combatants should use the Ginsburg fight as an opportunity to implement institutional reforms to dampen the impact of partisanship on judicial nominations. For instance, Supreme Court membership could be expanded on an extended schedule into the future, empowering both parties to make additional appointments. Or the role of the president and Senate could be eliminated, with jurists periodically chosen by lot for fixed terms from among appellate judges.
Or the selection/confirmation process could be left unchanged while Supreme Court terms are changed from life to a finite period — anything from six to 18 years, perhaps renewable if shorter. Set the right length and stagger the terms, and every president would get an appointment or two. Ill justices would be less likely to hang on, like Ginsburg, desperate to outlive one or another president. And even a “bad” nomination wouldn’t be worth another Armageddon political battle, since the appointment would not last indefinitely.
Obviously, it won’t be easy to drain partisan antagonism from today’s judicial debates. A majority party could block even term-limited appointments, though that likely would be seen as illegitimate by the public. However, making jurists less powerful should reduce the political stakes, and thus the likelihood either side would go to great effort to force through or block nominees. Successfully enacting such a reform also might improve chances of pursuing other nonpartisan measures to improve the process.
Irrespective of how the battle over Barrett’s nomination and the November 3 election turn out, a long-term solution is desperately needed. So long as jurists take on an outsize political role, their appointments will inevitably generate outsize political battles. In this world, expecting the GOP to forgo its immediate political advantage always was unrealistic. However, Democratic retaliation such as court packing would further radicalize the opposition and set up the next, even more damaging, partisan cycle as the American political system continued to hemorrhage civility and legitimacy.
The ultimate answer to today’s judicial wars would be to return judges to their role as, well, judges, rather than legislators. Alas, that is an unlikely concession by progressives, who built their political movement on the assumption that they can use the courts to reverse political losses. And after years of judicial policy activism it would be difficult to force jurists to limit their reach.
Still, it would be worth seeking bipartisan reforms that would endure past the next election. We all would benefit from deescalating the judicial wars and promoting a more peaceful judicial future.
Doug Bandow is a former Special Assistant to President Ronald Reagan. A graduate of Stanford Law School, he is a member of the California and D.C. bars. He is the author of several books, including The Politics of Plunder: Misgovernment in Washington and The Politics of Envy: Statism as Theology.