“The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation. Now you are seeing proposals in Congress to cut budgets of courts in an effort to in effect punish them for things the legislators don’t like. This is pretty scary stuff.” – Justice Sandra Day O’Connor to TIME
On February 13, 2016, Justice Antonin Scalia died in his sleep (throwing my honors thesis into a temporary existential crisis). A little more than one month later, on March 16, President Obama announced that he was nominating Merrick Garland, Chief Judge of the Circuit Court for the District of Columbia, to fill the empty seat on the Supreme Court of the United States. When the then-current session of Congress came to a close on January 3, 2017, Judge Garland’s nomination expired.
Though the Supreme Court, like any other court, is ultimately political in nature, its purposeful politicization by politicians remains wholly inappropriate. Historically, both parties have been guilty of politicizing judicial nominations, with a particular emphasis on Supreme Court nominees. What makes the Republicans’ actions concerning Judge Garland’s nomination unprecedented and particularly worthy of criticism was their refusal to even hold hearings and an up-or-down vote after a nomination has been formerly made.
Republican senators have complained about the Democrats’ treatment of Judge Gorsuch while simultaneously dismissing their own inappropriate actions regarding the nomination of Judge Garland. Their hypocrisy and outright contempt for the integrity of the process should not go unnoticed.
“A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice. Do we want a court that interprets the law, or do we want a court that acts as an unelected super legislature? This year is a tremendous opportunity for our country to have a sincere and honest debate about the role of the Supreme Court in our constitutional system of government.” – Chuck Grassley, on Merrick Garland’s nomination (emphasis added).
Recently, on March 23, Grassley tweeted, “If u r voting on qualifications and not politics Gorsuch is easy vote yes.”
On March 17, 2016, Senator Orrin Hatch indicated that the Senate may back-track and bring Garland’s nomination to a vote if Hillary Clinton or Bernie Sanders were to become the president-elect.
This is the same Orrin Hatch who on March 11, 2016 stated, “[Obama] could easily name Merrick Garland, who is a fine man.”
“I can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association, the National Federation of Independent Business that represents small businesses,” – McConnell told Fox News.
On January 4, 2017, McConnell warned Democrats not to consider any kind of blockade on a nominee, particularly one that was political in nature.
I’m not going to spend any significant amount of time discussing what the Democrats should do concerning Judge Gorsuch’s nomination. While it was, and is, absolutely necessary and justified for Democrats to ask pointed questions and give him due challenge, I am less certain about the full extent to which this resistance should be carried out. I am of the opinion that Merrick Garland was a fantastic nominee and would have served this country well as a Justice on the Supreme Court (I’m not alone in thinking as much, just look to Orrin Hatch’s (R-UT) statements shortly before Garland’s nomination). However strongly I disagree with Gorsuch on many issues (such as the case recently overturned by the Supreme Court), I think that Joe Manchin has the right approach when he said “[w]hat they did to Merrick Garland was wrong. I don’t want to do the same. Two wrongs don’t make a right.” (See this Washington Post article about the confirmation hearings). Ultimately, barring some completely unforeseen event or revelation, Judge Gorsuch will become a Justice on the Supreme Court. I fully expect that Senate Republicans will invoke the “nuclear option” if necessary to ensure that Judge Gorsuch is the next Supreme Court Justice.
What I would like to take under thoughtful consideration is whether or not the Republicans upheld the principles enshrined in our Constitution by refusing to hold hearings and permitting the American people decide who would nominate the next Supreme Court justice. Republicans apparently had no qualms about using that argument and ignoring the fact that President Obama, who had been reelected by a wide margin, had the Constitutional duty to nominate someone to fill any seat on the Court which was vacated during his term of office.
If voters should be the ones to decide who should fill a seat that opens up in the last year of a presidency, then logically they should be the ones to decide who should fill a seat that opens up at any given time (and arguably, they do in a manner of sort, seeing as how the Supreme Court is almost always a campaign issue. From there, it takes only a short jump in logic to conclude that voters would be better served by directly electing judges, rather than electing a representative who would nominate someone who would be vetted by another group of representatives before being approved. Directly electing judges would provide the voters with a direct say in who sits as a judge. Returning power to the people is inherently and always good, yes? At first blush, the idea of letting voters decide who should fill the empty seat on the Supreme Court may seem like a good idea. After all, citizens, some of who vote, are the ultimate source of power, yes? Further consideration reveals significant concerns with this sort of practice.
The ideal, the utopia if you will, is for judges to be wholly impartial in their rulings and decisions. Judges are supposed to be the neutral interpreters of the law, very unlike politicians, who make promises to constituents and are elected to office on the premise that they will use the power of the office to fulfill those promises. Politicians are, therefore, free to offer very different solutions to the same problem, as there is no single standard by which they must abide. Obviously, as human beings, it is entirely impossible for judges to remain unimpeachably impartial. What we can do, however, is work to ensure that our system reduces the temptations to rule based on the any influence other than the law. Indeed, our politico-legal system should not only reduce the risk, but also seek to incentivize such impartiality and neutrality.
In Federalist 78, Hamilton explained that “liberty can have nothing to fear from the Judiciary alone, but would have everything to fear from its union with either of the other departments [the Legislative or the Executive branch of government].”
Founding Fathers sought to purposefully insulate the Court from political pressures and from public opinion. They did this by framing the Constitution so that judges “shall hold their Offices during good Behaviour” (U.S. Constitution, Article III, Section I). The only manner in which a Judge may be removed from office against their will is through impeachment and conviction. These provisions alone were insufficient in the eyes of the Founding Fathers. In Federalist 78, Hamilton explained that “liberty can have nothing to fear from the Judiciary alone, but would have everything to fear from its union with either of the other departments [the Legislative or the Executive branch of government].” Thus, to further insulate the Judiciary from both the Legislative Branch and the Executive Branch, requiring separate nomination, by the President, and the advice and consent of the Senate.
Not only did the Founding Fathers desire to ensure the independence of the judiciary from the other branches of government, but they also sought to insulate it from the public’s passions. In Federalist 76, Alexander Hamilton stated “that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly.” The emphasis on the word “select” was included in the original text and was a very purposeful limitation, as Hamilton would explain.
“The exercise of it [the power of appointment] by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else.”
The Founding Fathers knew that although political power and final authority should rest with the people, there are occasions, such as determining who serves as a judge, where the people are actually better served by granting that authority to another institution, which would be able to more effectively examine nominees to determine if they were suitable for serving in the nation’s highest court.
Voters on the whole, even otherwise politically knowledgeable voters, are generally very unaware of who the various judges running for office are and what legal philosophies they adhere to. This is particularly true in states where judicial offices are nonpartisan. Even in states such as Iowa, where the Iowa Supreme Court justices are merely subject to removal at election time as opposed to having to actively run for office, the independence of the judiciary is deeply threatened. Justices are invariably encouraged to issue rulings in controversial cases which comport, not to the letter or spirit of the law, but rather to the temperament and passions of the electorate, so as to minimize the risk of being removed by an electorate acting on impulse.
If you recall (it probably won’t take much effort), in the days following the election, Republicans and Trump supporters were quick to point out that we do not live in a direct democracy, but rather a representative democracy, a republic.They have that much right. But now they seem to have forgotten that our republic emphasizes the independence of its judiciary from the political influence of the President, the Senate, and even the People themselves. Whether this is selective historical ignorance or plain unprincipled politics at its finest, either way Republicans are demonstrating that defending the Constitution and the principles it was founded on are of the utmost importance. Unless they cut against the policies Republicans want to implement and need the courts protect, that is.