The modern federal judicial nomination process is interesting because even as the actual records of the nominees have grown more substantive, the process by which they’re confirmed seems to have become equally less substantive. Thanks to Nixon, we’ve experienced a professionalization of judicial nominees since the 1970s. This means that a modern nominee to the Supreme Court will have extensive experience with the law, and oftentimes will have already served with distinction as a judge on a lower court. This is a strong contrast to the previous system, in which a close relationship with the president was the deciding factor in the nomination of this ragtag band of former governors, congressmen, and assorted politicos.
(Can we just pause here for a sec and note that for a paranoid man suffering from delusions of grandeur, who will only ever be remembered for Watergate, Nixon did a couple really awesome things? This stuff with the judiciary, opening trade with China, the EPA, even… He might be my favorite Republican president. For the lulz, if nothing else.)
Am I happy with the way the process typically proceeds? Well, I’m glad that the people who are appointed actually have knowledge of the law and the Constitution, and that they tend to have judiciary experience. In that sense, yes, I’m happy. Those seem like important prerequisites to me. Some random ex-governor is not my idea of a qualified ultimate arbiter of the law.
But in the larger sense of whether or not I’m actually satisfied with the process of confirming a justice, the answer would be no. How could I be satisfied with a process that benefits people with absolutely no record? Yeah, I get it; the more vanilla and uncontroversial a candidate, the more likely they are to make it through the confirmation process. What it really comes down to is that the Senate needs to stop being full of filibuster-happy a-holes. Does that mean I think they should just rubber-stamp everybody through? No! But they need to recognize that people with views differing from them can still be qualified candidates. Sliding people in through this no-record-to-complain-about route does not promote the necessary “free and open exchange of ideas” that senators should have to appropriately judge a candidate.
Note: I just want to make clear that Robert Bork would NOT fall into the category of “people with differing views who are still qualified candidates.” After reading up on the guy for our project, I’m so, so glad he didn’t get confirmed, even if it was the inception for the way the whole annoying process currently goes. The man didn’t believe in a right to privacy! That’s scary! That is what we call legitimate grounds for concern in a justice.
So, are we getting the caliber we ought to expect? As I’ve argued, they come with all the right qualifications now, but the lack of a real record to go off of keeps this question from having a simple ‘yes’ for an answer. I’ll call it a reserved ‘probably’ instead. But that doesn’t make the nation any less deserving of an open debate.
The next, and apparently more important, part (oops. Shouldn’t have spent a whole page discussing the previous stuff) is regarding this mythic idea of the apolitical nature of the court. Justices are not apolitical. That is silly. Justices are incredibly intelligent, sharp people with well-formed ideas. And since they are PEOPLE, they have opinions. What kind of good is it doing to pretend that they don’t? Because it seems pretty sure that they’re still affecting the decisions they make and the cases they rule on. Pretending that justices don’t have biases is about as useful as pretending the media doesn’t. Just be honest about it already, so that people can understand where things are coming from. Admitting your political leanings doesn’t mean you’ll have any less respect for the constitution or rule of law, or that your promise to faithfully interpret it will be null and void.
I was looking up SC quotes to use, and I found one from Irving Kaufman, who said “the Supreme Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.” But would it really lose the public trust to be straightforward about one’s views? The myth of objectivity just seems so obviously untrue that it’s worse than useless. It’s utterly hypocritical. There’s no way a blatant denial of what is clearly in front of someone’s face will increase the trust they have in an institution.
Additionally: it’s not like liberal vs. conservative is the only spectrum on which cases are judged. According to NPR*, almost half of all cases in the 2010 session ended up with 9-0 rulings, after all. I don’t think a general acknowledgement of political leanings would do anything to endanger that, and in some cases where things are obviously political, it might force judges to actually be more careful than they are now. Would Bush v. Gore have been such a ridiculous decision if judges were forced to answer for their partisanship openly? If they wanted to maintain any semblance of trustworthiness/respectability, one might think not…
As you can probably tell by this point, I’m not a big fan of the president supporting the ‘myth of objectivity.’ I think it’s disingenuous. Nor do I really think the president gains much from supporting it, so I’m not sure what his incentive there even is. I suppose it could make it harder for him to get candidates confirmed, but just because I may understand it as a strategy doesn’t mean I support it as a principle. Modern presidents don’t even have it that bad, as far as their track records for confirmations go. President Tyler had the opportunity to fill two vacancies on the high court, and over the course of 15 months made NINE nominations, only one of which made it through. (Yeah, only semi-relevant, but I thought it was cool.)
It seems like presidents don’t have much of a choice in the matter though. Remember how much trouble President Obama got in just for mentioning the word “empathy” in conjunction with Justice Sotomayor’s confirmation? Apparently the view that justices are just law robots spitting out the indisputably correct facts is still a prevalent one… Well, about 130 years ago, some eloquent guy named Oliver Wendell Holmes, JR. disagreed, saying “ the life of the law has not been logic, it has been experience…the law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Washington is all about having “adult conversations” about things these days. Maybe it’s time we had one about the way the Supreme Court nominations process goes. I can see why that’s a conversation the president wouldn’t want to have, but it’s still one we as a country need.
