I was going to title this blog post “What Happened?” Then I realized that didn’t narrow down the subject matter very much.
I’m sure you all know what is happening with the Supreme Court. Justice Antonin Scalia passed away on February 13. Within hours of his passing, Senate Majority Leader Mitch McConnell announced that the Senate would not hold hearings on any Supreme Court justice nominations put forth by President Obama.
I emphasize the “within hours” part because I wonder if the statement was a knee-jerk reaction to an unexpected development. Justice Scalia was known to side with conservatives on many issues brought before the Supreme Court, and Republicans were caught with their pants down. They manifested their concern that any Obama appointee would shift the liberal/conservative balance in the Supreme Court.
The previous paragraph sounds like it belongs in a “Twilight Zone” episode. The founding fathers put several provisions in place to ensure (well, try to ensure) that the Supreme Court and its justices would be above politics. The biggest of these is lifetime appointment of Supreme Court justices. That is designed to help the justices make rulings based solely on the law, and not because their job might depend on it (as is the case for the Executive and Legislative branches).
That is why Senator Ted Cruz’s proposed Constitutional amendment that Supreme Court justices be subject to periodic retention elections is totally against the basis of forming the Supreme Court in the first place. He is claiming to be a defender of the Constitution; I hoped he would understand it well enough to know why Supreme Court elections are a terrible idea.
Senator Cruz and Senator McConnell both refer to the “will of the people” as the reason for making the decisions they did. McConnell says the public needs to have a say in the choice of the next Supreme Court justice. Cruz says that retention elections will make the justices more responsive to the people.
These arguments don’t hold water. The public already did have a say in the choice of Supreme Court justice: they elected Obama in 2012. One of his Constitutionally-assigned duties is to nominate someone to fill any vacancy in the Supreme Court.
If the political landscape is too turbulent in the last year of a president’s term in office, who’s to say it’s any less turbulent in mid-year elections, when the House and 1/3 of the Senate is elected? Do we pass measures that say Presidents cannot nominate Supreme Court Justices for the period of one year before congressional elections? Why not extend that to appellate court judicial nominations? I used to embrace slippery-slope arguments. I like them less nowadays, but you can still see where this might be headed.
As for Cruz’s comments, Supreme Court justices are not supposed to be responsive to the will of the people. They need to be responsive to the law.
This brings us back to the title of his blog. (I hope that you realize it’s a joke, and you get bonus points if you know what I am referring to.) The Supreme Court is not supreme if it needs to make its rulings based on how anyone responds. It needs to be above all that – “supreme.” I’m hard-pressed to argue how it is no longer a “court,” but with a Supreme Court justice vacancy, it is not the Supreme Court previous generations envisioned.
We all know how politically divisive our country has become. All the media discussion around the Supreme Court justice nominee has centered on how it will affect the balance of the court, if it will make the court more liberal, since a Democrat made the nomination, and will the next President make a nomination more in line with the thinking of one of the parties.
There had been much praise for Judge Garland when he was nominated (and later confirmed) as an appellate court judge. Republican Senator Orrin Hatch, who supported Judge Garland 20 years ago, even said recently that it is not about the man. That only leaves the notion that it is about politics. Some Senators floated the idea that the Justice Committee would hold hearings after the November elections. Again, the only reason to even make this suggestion is politics.
The start to breaking the logjam of divisiveness is to appoint a centrist justice who has not shown a strong bias in his rulings throughout his career. By all accounts Garland is such a justice. Obama hoped nominating Garland would be a big overture in the process. The Republican-led Senate brought political hard feelings back into play with their decision not to hold hearings. Maybe enough Senators will be perceptive enough to see the foolhardiness in their actions (if only to avoid losing in the upcoming Senate elections) and hold hearings. Perhaps then the Supreme Court will be back on the road to an impartial body that is truly “supreme.”
Well, I can hope. After all, this is the President of hope. At least for another nine months.