Nihilistic Reflections on Judicial Confirmations

Jared Mayer, JHU:

Earlier this month, President Obama nominated Judge Merrick Garland to the Supreme Court of the United States. Judge Garland, who is in fact Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, tearfully accepted the President’s nomination. It was a poignant moment, framed by the President’s telling of Judge Garland’s life story, which itself is nothing short of the American dream come true.

But this whole song and dance in the White House Rose Garden was prompted only by the unexpected death of the late Justice Antonin Scalia. Scalia, while purportedly advocating a dispassionate and politically uncharged approach to the law, rallied generations of legally adept conservatives to the legal-ideological battlefront. He was the author of District of Columbia v. Heller, which secured the right to keep and bear arms under the Second Amendment, and provided the (expected, yet still necessary) fifth votes in Citizens United v. FEC and Burwell v. Hobby Lobby. In his absence, many conservatives are claiming that the constitutional order that they support will be undone. (I have written about this phenomenon in a previous piece, which examines how textual capaciousness can lead to political intractableness.)

No wonder why Mitch McConnell announced that the Republican majority in the Senate would not hold a hearing to consider President Obama’s nomination of Judge Garland. To be honest, in terms of pure, rational acting, it makes a lot of sense for Republicans to hold out on a Judge Garland hearing. Suppose that the Democrats win the White House and Senate come November. This will leave nearly two months for lame-duck republicans to confirm Judge Garland before the recently-elected Democratic candidate takes office and nominates someone far more “to the left” of Judge Garland. All of this assumes that President Obama won’t withdraw Judge Garland’s nomination or Judge Garland won’t withdraw himself; who can blame him for refusing to be the rag doll in the petty fight between Republicans and Democrats? Regardless, Republicans are rational to hedge their bets and wait to see how they do in the upcoming elections.

Of course, it was not always like this. With few exceptions, Supreme Court nominees have mostly been confirmed if they were sufficiently qualified. While Supreme Court nominees’ “qualifications” have certainly been thin veils for bigotry – the opposition to Justices Brandeis and Thurgood Marshall quickly come to mind – most of Supreme Court history has been characterized by the political branches’ desire to insulate the Court from political manipulation. Indeed, the impeachment of Justice Samuel Chase, which was done solely out of spite for his judicial opinions, was quickly dismissed, for Senators foresaw what politically driven impeachment of judges can engender. And during the Roosevelt administration’s attempt to “pack the Court” so that it would be friendlier to its New Deal legislation, senators from both parties chastised the president for attempting to manipulate what was the neutral arbiter of American law.

This entire hullabaloo of whether to hold a hearing for Judge Garland presses on us the question of whether the Supreme Court remains the neutral arbiter of American law. Upon taking a step back from the fray, we might conclude, much like Eric Segall in the New Republic did, “We are not replacing a judge bound in any real sense by the law but an important political official who happens to sit in a courtroom. This person makes decisions not based strictly on legal interpretations but on his values writ large.” To be honest, it is difficult to counter this claim, not because the pages of the U.S. Reports are drenched with value judgments right and left, but because legal interpretation and “values writ large” merge into a single jurisprudence. Indeed, this was the entire message and indeed appeal of the broader “Living Constitutionalism” camp. In it, one need not surrender one’s philosophical or value commitments carte blanche, or even attempt to surrender them as such; rather, one could envelop one’s philosophical and value commitments in the clothing of the law. (Scholars in this camp disagree as to how much “external constraints,” such as precedent, democratic choice, and fit in the relevant text, play into the judicial calculus.)

And since the Warren Court of the 1950’s, the Supreme Court has operated in this fashion, for better or for worse. Nearly every large constitutional decision made by the Court since that time has been characterized as merely value judgments in poor disguise, ranging from Roe v. Wade to District of Columbia v. Heller to Citizens United v. FEC to Obergefell v. Hodges. Everyone has both their favorite cases, which they cheered on, and their hated ones, which they derided as “stealing the choice from the American people,” or “imposing their will upon us,” or some other horribly misinformed slogan, which, mind you, was neglected in full when their favorite democracy-denying, private-will-imposed decision was issued. Amnesia is a funny thing.

If the Supreme Court is going to assert itself in the business of solving the great social issues of our day, it should be no surprise that the president and Senate want to ensure that the Supreme Court’s members will resemble what the people (read: majority of the Senate Judiciary Committee) wish for them to resemble. And so, we return to the Supreme Court confirmation process in which we are currently embroiled. Linda Greenhouse, the Op-ed Supreme Court correspondent for the New York Times, claimed that Republicans are refusing to hold a hearing for Judge Garland because of a long-held tiff with Democrats over their refusal to confirm Judge Robert Bork to the Supreme Court. (Justice Kennedy eventually got that seat on the Court.) Greenhouse is right to point out two things: first, that Judge Bork got a hearing and a floor vote from the entire Senate; second, that despite the first point, two wrongs do not make a right, and Judge Garland deserves the Senate’s full consideration, no matter how Judge Bork was treated.

What she gets wrong – almost blindly so – is that “History, one might suppose, has moved on.” Indeed, it has never moved on from the Bork hearings. Not insofar as Republicans bear an endless grudge against the Democrats for rejecting Judge Bork, but insofar as confirmation hearings, and judicial appointments in general, will be less of a brief investigation of a nominee’s qualifications and more of an inquisition into the nominee’s political and judicial affiliations and proclivities. To be sure, the ferocity of such hearings ebbs and flows; Justices Ginsberg and Breyer had relatively smooth sailing throughout their hearings, while Chief Justice Roberts, and all the more so Justice Alito, had a more difficult time with their hearings. But the very nomination of those figures with whom we are all so familiar is indicative of the fact that the political stakes of the Supreme Court have skyrocketed. What is more, the fear of a nightmarish confirmation hearing continues to plague many a White House vetting process, a fear that the Bork hearings instilled and later hearings, such as the Alito and Kagan hearings, confirmed.

Now we have before us the two foci of the vicious cycle. The Court, in its own sense of needing to address looming social issues and with support from (at least some of) the American people, inserts itself into those very issues. The political branches, realizing that the stakes for the composition of the Supreme Court have been astronomically raised, narrows the ability of well-qualified nominees to join the Court. The president, with his or her eye on having a Court as friendly to his or her policies as possible, nominates an ideologue to the Court. The Senate, equally sensing the political gravity of the situation, ensures that the nominee faces what is sure to be a political dogfight. Round and round and round we go; no wonder we eventually get nauseous of it.

Among Judge Garland’s myriad of qualifications is having clerked for Justice William Brennan. An anchor of the Court’s progressive wing for decades, Justice Brennan was nominated by President Eisenhower, a Republican, in 1956. Brennan, unlike, say, Justice Souter, was not a covert progressive in conservative clothing; President Eisenhower decided to nominate the New Jersey progressive as a gesture of good faith to the Democratic party, a common bipartisan gesture in those days.

And so perhaps, as Greenhouse said, history moves on. 60 years later, Justice Brennan’s former clerk and now Chief Judge of the District of Columbia Circuit has spent his recent days moseying around the Senate, asking, indeed begging, Republicans to meet with him. Without a doubt, Republicans and Democrats alike should confirm him. He’s a “centrist” judicial candidate (as though we have a comprehensive definition of what that means) and, most importantly, he is resoundingly, unquestionably qualified. Yet in addition to correcting what is now an equally divided Court, we need a long, deep conversation about the role we wish the Court to play in our lives, in our democracy, and in our Nation. And there is no time like the present for that.



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