Selecting Judges for The Supreme Court

 My position on selecting judges for the Supreme Court is as follows:

1. It is the President’s responsibility and prerogative to appoint a candidate.
2. The Senate’s role is to confirm.  I think that means to approve the candidate unless there are strong non-partisan reasons to deny confirmation.
3. Judges should be selected based on their ability to analyze difficult issues reflecting conflicting principles and to come to a well-defined and well-reasoned position they can articulate well.
4. It is important to have diversity on the Supreme Court as elsewhere.  The most important aspect regarding diversity is how an individual’s mind works.  Such diversity is related to age, ethnicity/culture, gender, experience, etc.  It shouldn’t be tied to race, but race adds diversity because of our frailties as humans.
5. I am NOT in favor of litmus tests.  Declaring their position on a litmus test case can hinder their ability to later be a judge.  Supreme Court judges need to discuss political theories and interpretations with each other and be able to identify unique aspects in a case which might cause a decision to differ with what they, or watchers, might have expected their position to be.
6. With our increasing life span, it would make sense to me that we stagger judicial appointments with the intent of having 18-year terms.  (Originally, I suggested 20-years, but the proposal of 18 years is superior because, barring deaths, each 4-year Presidential term would have two Supreme Court nominations.)

I am not a Supreme Court historian, but my impression was that Supreme Court nominations worked effectively and appropriately until Robert Bork's nomination in 1987.  At the time, I was not a fan of Bork.  I disagreed with his action in the Saturday Night Massacre.  But he seemed clearly to have a bright, discerning mind, to judge on principle, and to explain his positions clearly.  He seemed eminently qualified.  I believe the campaign against him was blatantly partisan and dishonest.  Although I definitely leaned Democratic at the time, I was upset at the Democratic attack on Bork.

Since then, character assassination has become an increasing ploy by the opposition party during Supreme Court nominations.

Another new bad faith ploy arose during the Bush administration.  Democrats filibustered numerous judge appointments below the Supreme Court level, not based on the nominees' qualifications but simply to obstruct for partisan purposes.

In the Obama administration, Republicans copied that maneuver, until the Democrats (Harry Reid) suspended filibuster rights for appellate nominees.  Some people say two wrongs make a right; I'm reluctant to adopt that position as it is an "end justifies the means position" and a very slippery slope to on-going abuse.

Mitch McConnell had warned Harry Reid that voting out a filibuster by majority vote was a bad idea.  He extended the 'no-filibuter' to Supreme Court judges, another nakedly political move.  (Now, Democrats want to eliminate all filibusters.  I think that is a dangerous step.  We’re careening through a series of “wrongs” in reaction to previous “wrongs” rather than gravitating back to what is proper.  To the degree that the filibuster is being abused, we should address the underlying problems rather than eliminate the filibuster.)

Then the Republicans blocked Merrick Garland.  I strongly opposed their action and still do.  I’ve heard basically two arguments to justify it:

·      1) One theory is that when the President and Senate are of the same party, the voters have voted for a consistent view of qualified Supreme Court justices, but when the President and Senate are of different parties, the people have not voted clearly.  Thus in the later situation, it is appropriate for the Senate to defer voting on a Supreme Court judge until the next administration.  I disagree with this theory because:

o   I believe the Senate’s role is confirmation, not selection.

o   People have rarely voted for Senators with Supreme Court judges in mind.  (An exception was the Trump-Clinton election, in which  many people voted for Trump because they felt that separation of powers was being undermined by the Supreme Court's encroachment of the legislative role and that Hillary Clinton's list of litmus tests was damaging.  Trump's idea of naming potential nominees was effective.)

o   There are so many other issues in Presidential and Senatorial elections, especially as Senatorial elections are statewide not national.  Ascribing Supreme Court mandates to these elections seems fanciful.

·     2) The second theory is simply a power theory.  If we have the votes, we can do what we want.  You won't be surprised that I don’t agree with that stance.

I sympathize with the Democrats’ bitterness relative to Garland.  I would have liked them to call a truce.  As they had initiated most of the past Supreme Court nomination abuses, they would have been in a good position to do so.  They, of course, chose not to do so.

When candidate Trump identified a list of seemingly highly-qualified potential judges in 2016, the Democrats responded with a wanton attack on the Federalist Society.  The Society leans strongly conservative but as part of those principles they promote free speech and favor strong debate on issues, thereby contributing to education and a knowledgeable citizenry.  Their opponents seem less willing to defend their ideas than are the Federalists.  Few Democrats are concerned by the biased education occurring on college campuses. 

As noted above, on the Democratic side, candidate Hillary Clinton did not identify potential judges but rather identified a list of litmus tests that she would apply to any candidates for the Supreme Court.  I found that to be alarming.  (Note: although I favored Trump's Supreme Court approach, I did not vote for Trump.  As I was in a non-contested state, I felt I had the luxury and responsibility to reject both candidates for multiple reasons, so I voted for Evan McMullen.  Although I felt strongly about the Supreme Court issue, it did not determine my vote.  As noted above, generally interpreting elections as Supreme Court mandates is simply a sound byte intended to distract voters.)

While his opponents claim that President Trump has stacked the court, I believe Trump improved the balance of the court.  An indicator of whether a court is stacked is whether judges vote uniformly.  Clearly, the “liberal” judges vote more as a bloc than do conservative judges.  In my opinion, it was the Democrats who stacked the Supreme Court.

Some of my liberal friends would likely argue that the reason the conservatives don’t vote as a bloc is because sometimes the “rightness” of the liberals is so overwhelming that one or another conservative must vote his/her conscience.  That perspective is mired in the myopic presumption that conservatives are generally not voting their conscience.

I think the liberal judges believe in a “living Constitution” and are more willing to find ways to interpret the Constitution to support what they think the law should be.  Because they have relatively more interest in the result than in the legal argument, they are more willing to buy into each other’s justifications for their decisions.

The conservative judges are more likely “strict Constructionists” but not entirely uniform in their interpretations, particularly when it comes to prioritizing competing principles.  I applauded when Judge Gorsuch stated that a good judge won’t like all of his/her decisions because the law may not support his/her personal preferences.  It is partly (but not necessarily entirely) because of their different philosophical beliefs that they don’t vote as a block.  This diversity is good for the court.  We should be happy when different perspectives are voiced and considered collegially, then resolved in a vote.

Furthermore, several Democrats have advocated stacking the Supreme Court by expanding it radically.  It is of great concern to me that there are so many “the ends justify the means” believers in our society, who support such a radically inappropriate agenda.  Expanding the Supreme Court in this fashion severely undermines our critical Separation of Powers because it creates a precedent that the Executive and Legislative branches will conspire to shape the Supreme Court to serve a current administration's goals.  Subverting the Supreme Court is extremely inappropriate and dangerous!

Supreme Court nomination arguments, impeachment arguments and so many other political arguments reek with hypocrisy on both sides of the aisle as politicians and their followers take 180˚ different positions depending on whether a Democrat or Republican is involved.

As the Republicans misbehaved last time, I was hoping that the Ruth Bader Ginsberg vacancy would unfold as follows:

•         President Trump makes a nomination.  That is his responsibility.
•         It comes to the Senate.  It is their responsibility to vote.
•         A number of Republicans in the Senate vote to defer as a sign of good faith to try to end the politicization of Supreme Court nominees.  I figured that Susan Collins, Lisa Murkowski and Mitt Romney might take such a stance and hoped that a handful of others would do so, so no Republican could be singled out as the cause of a deferral.  Collins and Murkowski took that stance, but Murkowski has since wavered.  Romney took the appropriate stance that the Senate should vote but I am not aware that he has indicated how he would vote.

As noted above, the Democrats have a strong argument regarding the Merrick Garland incident.  However, they don't trumpet that argument.  Instead they continually say that the decision should be left to the voters, which is a 180 degree reversal of their position four years ago.  For those of you who don't think the media is biased, count how often Republican hypocrisy on this issue is appropriately cited to how often Democratic hypocrisy on this issue is appropriately cited.

Former VP Biden has shown political cowardice by refusing to divulge his position on this key issue.  He is afraid of alienating either his radical left supporters or moderates like me who intend to vote for him.  He claims that if he announced his position, it would be a headline issue.  If the media was doing its job properly, the headline from the first 2020 Presidential debate should have been "President Trump refuses to repudiate right-wing extremists; former VP Biden refuses to repudiate Supreme Court expansion".  Without citing the hypocrisy, Jake Tapper did an excellent job in exposing the Biden campaign on October 11; see Tapper pressing Supreme Court issues.

Although I'm resisting Biden's strong pressure that my presidential vote should be determined by the Supreme Court, I'm now leaning to cast my Senate vote on that issue.  I had intended to vote for the Democratic candidate for Senate, but she has refused to disclose her position on expanding the Supreme Court and on public charter schools.  When I ask those questions, I get an email that says "We look forward to reviewing your email."  But a response never comes.  I hope Biden's cowardice contributes to the Republicans retaining the Senate to avoid Supreme Court expansion.  (Sadly, in our current extremist environment, it may be best not to vest both houses and the Presidency in a single party.)

However, if Amy Barrett becomes a Supreme Court justice and if President Biden wins and the Democrats control the Senate, I could tolerate adding (only) two seats to the Supreme Court.  Had Merrick Garland and Amy Barrett both been named to the Supreme Court, we'd have 5 Republican nominees and 4 Democratic nominees.  But because the Republicans blocked Merrick Garland, Amy Barrett would tilt the composition to 6 Republican nominees and 3 Democratic nominees.  If  a President Biden added 2 Democratic nominees, we'd be back to a situation of one more Republican nominee than Democratic nominee.

However, it seems clear that the Democrats' Supreme Court expansion goal is not simply to reverse the Merrick Garland wrong, but rather to restore the temporary imbalance that distorted the constitutional separation of powers by turning the Court into a legislative body.  The Democrats want to expand the Supreme Court so they can, through the Supreme Court, once again impose legislation that they can't get through the legislature.  Supreme Court expansion  for such a politically partisan purpose (intended to undermine the constitutional separation of powers) is wrong, in my view.

More fundamentally, some Democrats have been threatening the Supreme Court to pressure the justices to serve the Democrats' interests.  As noted above, expanding the Supreme Court severely undermines the Separation of Powers by establishing a precedent that the Executive and Legislative branches will conspire to shape the Supreme Court to serve a current administration's goals. 

We need to reform practices regarding Congress to reduce the partisan discord, rather than to exacerbate it.