SCOTUS: A broken appointment process

SCOTUS Series 002.

Originally posted on Facebook Facebook 26 Oct 2020

The RBG replacement process is an interesting juxtaposition of expedience and consistency. And political expedience seems to be winning on both fronts.

Democrats who railed against the 2016 delay in voting on Garland, now say that not carrying out a confirmation vote in an election year is an important convention which should be seen as an unwritten part of the constitution. They are wrong to do this. Their 2016 opposition to delay was right, and the fact that they happily jettison everything they said in 2016 is almost as big an indictment of US partisanship as the Democrats saying that they believe Joe Biden is a rapist but want people to vote for him anyway.

Republicans in 2016 did not justify delay on the basis that their 2014 campaigns had been based on restraining Obama. They delayed because they could, and because, for reasons I don’t understand, they didn’t want to cite the Bork precedent and just vote against Garland, because they didn’t like him. But, of course they did not want to admit this was partisan expediency and so they dressed it up as a ‘trust the people’ argument. They, like the Democrats, are now rowing back on most things they said in 2016. Because neither side was arguing from principle in 2016, and neither is now. The only question is how blatant each side wants to be in its hypocrisy.

The GOP had an option denied to the democrats. Trump was not part of the 2016 senate GOP (he used to be a Democrat, and I don’t know when he even joined the Republicans). It would have been possible for the senior GOP senators that made speeches in 2016 rationalising delay, to stand down from leadership positions, and leave the judiciary committee to be lead by a newer senator untainted by 2016 statements that the party now wishes to disregard. But Senior senators don’t give up prestigious positions (should we call them principal positions?) for reasons of principle.

Would GOP hypocrisy justify a Democrat president & senate expanding the court to pack it with justices they liked? No. There is a vast difference between inconsistency in the face of expedience, which is, sadly, an everyday occurrence in politics in the US (& elsewhere), and ripping up the rules.

The US has become more fragmented and more partisan than it was in my formative years. It is approaching a situation where a large proportion of those who lose an election do not accept the legitimacy of the winner. If a winning party then tries to remove constitutional checks and balances, we may as well stop trying to keep the US together as a coherent nation.

The Supreme Court has become particularly powerful, so that nominating a justice is often a president’s biggest ‘achievement’. Changing the powers of the court would be difficult, but the fragmentation of the nation might be promoted less if we moved away from the current ‘winner takes all’ approach.

How would it be if we had a convention that promoted the nomination of middle of the road justices, save where there was a clear mandate for a potentially transformational justice? This could be done if the latter were only nominated/confirmed when a presidential candidate detailed in their manifesto an intention to put forward particular named individuals, and the voters then installed the president and gave his/her party a majority in the senate? Absent such a dual mandate, the appointment of justices should be a negotiation between the senate and the president, with the expectation that candidates would not be the sort to ‘discover’ new rules/rights, or to advance arguments such as Scalia’s attempt to say that the prohibition on cruel & unusual punishments did not ban torture if the purpose of the torture was not to be a punishment but to elicit information (I don’t know if Scalia defined a confession as ‘information’, but, even if he did not, it is easy to see such an extrapolation being made had Scalia’s argument been accepted). I have cited Scalia not because I think he was a bad justice, indeed I applaud many of his opinions which favoured the individual accused by an over-mighty state, and in support of the fourth amendment, but because, at times, he advanced unusual arguments supporting the rights of the government against an individual.

‘Consensus’ / negotiated appointments should probably be at least in their sixties. Presidents have taken to nominating exceptionally young justices (Kagan was only 50, Kavenaugh 55)in order to maximise the length of their influence. But appointing someone potentially for 35+ years seems like the wrong balance between gaining the benefit of experience on SCOTUS and putting someone into a super powerful position with no future accountability. I wondered if appointments being limited to 20 years (renewable if re-nominated) might help, but that creates a problem because, if people will retire from SCOTUS with good working years ahead of them, the potential for corruption, or the appearance of corruption, arises as soon as a retired justice is able to take up another role or earn income from doing anything other than judging SCOTUS cases.

As ever, more questions than answers, but these are things that do need to be considered by anyone who does not see excessive partisanship as desirable.

FWIW at the confirmation hearings I thought ACB came across very well. Perhaps my mind is playing tricks on me, or perhaps my perception was tainted by the general mudslinging, but I don’t remember Kavanaugh seeming to be super bright or personable: no doubt he is brighter than I am, but his brilliance was not what I took away from his hearings. My bet is that she will be the better justice, by some way. And that she will say that the individual mandate is severable from the rest of the ACA.

PS Until this point, it seemed that only Martin Luther King and presidents (FDR, JFK, LBJ, RMN etc) came to be known by their initials. But with RBG, and ACB, initials are now used for some SCOTUS justices and prospective justices. Another indication of the court’s increasing power?

[After I posted the article, someone kindly pointed out that AOC, despite not being a justice, or President, manages to be known by her initials]