Selecting Judges for The Supreme Court

 I wrote a blog on this two years ago.  I've updated it because it is such an important topic.

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 position which they can articulate and justify well.  They should have demonstrated integrity and ethical, as well as professional, standards

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.      Since becoming conscious of Supreme Court nominees’ Senatorial hearings about 60 years ago, I have felt that it is inappropriate for Senators to ask nominees “litmus test” questions.  Asking litmus test questions is an effort to usurp the President’s prerogative and trying to pin nominees down is unfair to them because it tries to paint them into a corner on a future case relative to which they should be open-minded.  Justices should listen to the facts and arguments in each specific case and learn subtle Constitutional insights from their peers’ commentary and discussions while being a member of the Supreme Court, any of which might cause their decision to differ from what they, or watchers, might have expected their position to be.  This problem has intensified because people have tried to turn the Supreme Court into a legislative body and to impose their preferred legislation through the courts (and the court nomination process) rather than the legislature. 

6.      With our increasing life span, it would make sense to stagger judicial appointments with the intent of having 20-year terms and approximately the same number of openings appointment opportunities each Presidential term.  Clearly, Progressives would want to apply such a rule retroactively, while Conservatives would press for it to be prospective, if at all.  Perhaps a compromise could be found.  For example, if the change were to take effect at the time of the next Supreme Court opening and the current judges’ term expirations were in the order in which they were appointed, current justices would be able to sit on the Supreme Court more than 20 years.

I am not a Supreme Court historian, but my impression was that Supreme Court nominations worked effectively and appropriately until Robert Bork 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.  The campaign against him appeared to be blatantly partisan.  Although I definitely leaned Democratic politically 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 ploy arose during the Bush administration.  Democrats filibustered numerous judge appointments below the Supreme Court level.

Republicans copied that maneuver during President Obama’s administration, until the Democrats under Harry Reid suddenly suspended filibuster rights for appellate nominees in 2013, breaking at least a 40-year tradition.  Mitch McConnell predicted that the Democrats would regret having done this.

Based on Reid’s action, McConnell led the Republicans in removing the filibuster from Supreme Court nominations in 2017.

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

·        #1: When the President and majority of the 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 latter situation, it is appropriate for the Senate to defer voting on a Supreme Court judge until the next administration.  I STRONGLY disagree with this theory because:

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

o   I don’t believe the Supreme Court influenced the elections of any of the Senators at that time.  People have rarely voted for Senators with Supreme Court judges in mind.  To the degree that has happened, it has only been due to the politicization of the process, which I hope turns out to be a temporary phenomenon.  (The first time I am aware of Supreme Court nominations possibly affecting Senatorial races is when the Democrats threatened to stack the court in 2020.  In that case, some people voting for Democratic Senate candidates were voting for a particular type of nominee, but people voting for Republican candidates were simply rejecting efforts to undermine our government’s separation of powers.  However, it appears that the Supreme Court’s Dobbs decision may affect the 2022 Congressional elections.)

o   There are many other issues in Presidential elections as well.  I don’t think many people voted for President Obama based on likely Supreme Court nominations.  However, both Donald Trump and Hillary Clinton made Supreme Court nominations an issue in 2016 and Joe Biden (by not denouncing packing the court) made it an issue in 2020.

·        #2: If we have the votes, we can do what we want.  I don’t agree with that stance.

I sympathized 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 abuses, they would have been in a good position to do so.  They, of course, chose not to do so.

In 2016, candidate Trump identified a list of seemingly highly-qualified potential judges.  The Democrats responded with a wanton attack on the Federalist Society.  The Society leans strongly conservative.  As part of those principles, they promote free speech and favor strong debate on issues.  Their opponents seem less willing to defend their ideas than are the Federalists.  In contrast, few Democrats are concerned by the discouragement of free speech and biased leftist education on most college campuses.

On the Democratic side, candidate Hillary Clinton did not identify potential judges but rather publicly identified a litmus test that she would apply to any candidates for the Supreme Court, in particularly overturning Heller.

While his opponents claim that President Trump has stacked the court, I believe Trump improved the balance of the court.  (Although I’d prefer a 5-4 conservative majority as Merrick Garland should be on the court.)  An indicator of whether a court is stacked is whether judges vote uniformly.  The “liberal” judges vote as a bloc than do conservative judges.  In my opinion, the Democrats stacked the Supreme Court earlier.

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.

Liberal judges believe in a “living Constitution” and are more willing to find creative ways to twist the Constitution to support what they think are the right decisions.  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.  To them, the end justifies the means.

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 bloc.  This diversity is good for the court.  We should be happy when different perspectives are voiced and considered collegially, then resolved in a vote.

Most Democrats want to eliminate all filibusters now.  I think that is a dangerous step.  It seems as though we’re careening through a series of “wrongs” in reaction to previous “wrongs” rather than gravitating back to what might be proper.

Several Democrats have advocated stacking the Supreme Court by expanding it radically.   It is of great concern to me that so many “the ends justify the means” people in our society support such radically inappropriate agendas. I could be comfortable with making a change to move the balance to what it would have been if Merrick Garland had been approved if it could be accomplished as part of a bipartisan truce.

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

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

1.      President Trump makes a nomination.  That is his responsibility.

2.      It comes to the Senate.

3.      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.

An unintended (and not well reported) aspect of the January 6^th committee was that it exposed the Democrats’ malicious character assassination of the Trump Supreme Court nominees.  Democratic leaders continually insisted that Trump was stacking the court with justices who would support whatever he wanted to do.  Those charges were blatantly ridiculous as the nominees had strong records supporting separation of powers and were strict constructionists.  Nonetheless, a lot of people believed the false accusations.

During the January 6^th years, we learned the Greg Jacob (attorney for Mike Pence) and John Eastman (attorney for Donald Trump) discussed what would happen if Mike Pence acted in the fashion that President Trump demanded and the case went to the Supreme Court.  They agreed that the Supreme Court would rule 9-0 against Trump, in sharp contrast to the Democratic leaders’ statements during the nomination processes.