Picking a Supreme Court Justice—Always Political, Increasingly Partisan


Sup Ct wikipedia image

Supreme Court building, from Wikipedia

I have always thought that Presidential elections were more important for the regulators and the court appointees that the person elected made than for the individual’s personality or executive presence. The situation we find ourselves in now—picking a Supreme Court justice in the middle of a contentious election year—proves my point. The next Supreme Court justice is likely to serve for decades longer than President Obama . . . or than his successor, for that matter.

A non-attorney friend asked me what I thought about the debate over picking Justice Scalia’s replacement. This is an expanded version of what I told her.

Of course, President Obama can nominate a replacement. He can do so at a time of his choosing between now and when his term expires. He will probably do so soon, as he is entitled to do.

And the Senate is responsible for vetting that nominee and making an informed decision whether to approve or disapprove of that person. But there is no requirement that the Senate do so within any particular timeframe. And time is on the Republicans’ side in this situation.

Waiting a few months to make a decision on whether to hold hearings only makes sense from the Republican perspective. Waiting even longer to schedule a vote on the nomination also makes sense.

By mid-summer we will know who the Democrat and Republican nominees for President will be. Much can change between summer and November, but knowing who the nominees are will help the Senate assess what is likely to happen if they don’t appoint President Obama’s nominee. More information is always better for decision-making. It’s possible that President Obama’s nominee will seem the lesser of two evils and will get confirmed. It’s also possible that the Republicans will stall or vote down the nominee. All of this is their perogative to decide, as is the timeline.

Which is why I thought it was silly for Senator McConnell to announce immediately after Justice Scalia’s death that President Obama shouldn’t nominate anyone and the Senate wouldn’t act on any nomination the President did make. Why bother? Unless Senator McConnell thinks his statements will induce President Obama to name someone completely acceptable to Republicans. Which is doubtful.

The best thing that President Obama can do for the country is to nominate someone who has a known middle-of-the-road judicial record. Someone the Republicans might even approve of. But I doubt that happens.

(Well, actually, the best thing that President Obama could do in my opinion is to find a clone of Justice Scalia. But I know that won’t happen.)

The worst thing that President Obama can do for the country is to nominate a radically liberal candidate. That makes the Republicans’ decision to delay or deny the appointment easy. Then nothing will happen on approving a Supreme Court justice until 2017, when a new President makes a new nomination.

The most likely thing that President Obama will do is nominate someone who is quite liberal, but who the Republicans might have a hard time arguing against. A person of color or a woman who was approved for a lower court appointment. Perhaps someone with an unknown judicial record. In that case, the Republicans should definitely take a wait and see approach. Waiting until after Labor Day to make a decision would make sense.

I hope I’m wrong.

The process of selecting Supreme Court justices has always been political—that’s how the Constitution was designed. The President and the Senate both have roles in determining who leads on the third branch of our federal government, the Supreme Court. It might be that the Senate used to defer to the President’s choice more easily than today, but the President made political decisions in making the appointment, and the Senate was free to make political choices in how to respond.

In the last thirty years, the process has become increasingly partisan. But so has every other part of government. The issues confronting our nation today are huge and the divides wide. And we are split roughly 50/50 on these issues. That the Supreme Court has also been split has actually reflected the nation as a whole. If President Obama nominates a centrist judge who is approved, the Court would remain so. Anything else will tilt the Court, and the Republican Senate is unlikely to agree to such a change just before an election.

Which brings us back to my original point—who a President selects for judicial appointments is of critical importance to the nation and to our future.

What do you think will happen with the Supreme Court nomination? (Or should we all just wait and see?)

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