Judging the Judges: The Supreme Court and Partisanship

By Derek Willie

Derek Willie is a sophomore at the University of Pennsylvania

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” [1] So pledged Sen. John McCain (R-AZ) on a Philadelphia radio station, largely in an effort to convince fellow Republicans to reelect incumbent Sen. Pat Toomey (R-PA). It seems, however, that McCain’s promise served only to reinforce Democrats’ allegations of hyper-partisanship in the GOP, especially following Senate Republicans’ refusal to consider President Obama’s appointment of Merrick Garland to the Supreme Court. McCain’s office quickly argued that his remarks were grounded in Sec. Clinton’s “clear record of supporting liberal judicial nominees.” [2]

Liberal judicial nominees? What else would McCain expect from the nominee of the Democratic Party? The Senator’s preemptive dismissal of any “liberal judicial nominee” seems to exclude almost anyone Ms. Clinton would reasonably nominate. Furthermore, Democrats could employ McCain’s logic to justify obstructing the judicial nominees of a potential Republican president. In a political climate that essentially forces political leaders to focus on the demands of their party’s ideological base, it is easy to label a prospective judge as “too liberal” or “overly conservative.” As difficult as it is to believe in the era of Donald Trump, there will be another Republican president, perhaps immediately succeeding Hillary Clinton. If Republicans set the precedent of opposing judicial nominees on a purely ideological basis, Democrats would likely continue it, rendering the judicial confirmation process an almost completely partisan enterprise.  Given the filibuster rules of the Senate, it would take a supermajority (sixty senators) to quell the resistance of a united, persistent minority.

This creates the prospect of a judiciary tainted by partisanship, which could pose major procedural predicaments, impairing the court’s logistical ability to perform its constitutional responsibilities (as evident in the tied votes on several cases by the current eight-justice bench). Despite many recent claims by Democrats, the Constitution does not technically require the Senate to act on a judicial nominee. Indeed, every judicial appointment requires the “advice and consent of the Senate”; if the Senate chooses to withhold such consent, no new judges can be sworn in. [3] Moreover, once the judiciary’s composition becomes directly dependent on the Senate’s, it becomes impossible to detach the ideological proceedings of Congress from the putatively independent deliberations of the judiciary. In a sense, the GOP could be unwittingly destroying the very principle of judicial impartiality it purports to defend.

How then, are we to reconcile partisanship with the ideal of judicial independence? How might we exempt the judiciary from ever-pervasive presidential and congressional politics? On his campaign website, McCain succumbs to the oft-mentioned “judicial activism” argument popular among conservatives: “The proper role of the federal judiciary is to interpret the Constitution and laws created by the legislature—not to assert itself as activist or create its own laws.” [4] The Republican Party’s platform reverberates McCain’s doctrine, labeling “an activist judiciary” as a “critical threat to our country’s constitutional order.” [5] It seems, then, that McCain and fellow Republicans oppose altogether any injection of ideology into the judicial sphere—or so they claim. A few lines later, though, on his website, McCain touts his leadership on the “Gang of 14” committee, which “allowed several of President Bush's judicial nominees to proceed in a gridlocked Senate, including the confirmation of two of the Supreme Court's most conservative, constitutionalist justices - Roberts and Alito.” [6] Wait a minute— was it not McCain who lambasted Hillary Clinton for supporting liberal judicial nominees? It is hard to see how a Republican Senator can vigorously oppose “activist” judges while openly supporting those with right-wing ideological leanings. If McCain wishes to sustain his original reasoning, it almost requires us to disqualify conservatism as an ideology, or something capable of activism.

Unsurprisingly, the GOP is no more furtive in its hypocrisy. Denouncing the “Roe, Obergefell, and the Obamacare cases” as “activist decisions,” the platform proceeds to proclaim that “a new Republican president will restore to the Court a strong conservative majority that will follow the text and original meaning of the Constitution and our laws.” [7] Both McCain and his GOP allies seem to argue that a conservative interpretation of the Constitution is the correct one, no questions asked. The right-leaning Federalist Society indulges in the same tactic, opining that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” [8] For the Federalist Society, this constitutional “reality” involves “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.” [9] Employing a series of abstract terms, the Federalist Society conceals that any legal decision to revert to “traditional values” inevitably manifests itself as conservative, political ideology, not as an impartial or natural way of interpreting the Constitution. Thus, in an almost arrogant attempt to enthrone their own principles as objective truth, conservatives reduce their allegation of “judicial activism” to a guise of pure, unfettered partisanship.

Acknowledging the apparent ideological stake of conservatives seeking a return to judicial “objectivity,” we might wonder whether it is truly possible to access an impartial interpretation of the Constitution, unstained by ideology or politics. Evidence from recent history suggests that it is not. Before Republicans obstructed President Obama for his liberal judicial nominees, Democrats did the same for President Bush. [10] By intertwining the judiciary with the Presidency and the Senate, the Founders created in the Supreme Court an inherently political institution, a matter exacerbated by the current hyper-partisan climate. Perhaps it is no longer appropriate to imagine the Supreme Court as a discrete entity; perhaps it is naive to think that the judiciary could ever escape the political influence surrounding it. How we should proceed under the scourge of congressional gridlock is unclear; we may be certain, however, that the Supreme Court represents only one symptom of a much greater, more profound ideological division plaguing America.

[1] Lithwick, Dahlia. "The GOP Has Spent Years Saying Nothing Matters More Than the Supreme Court. Now That’s Backfiring." Slate Magazine. 2016. Accessed October 27, 2016. http://www.slate.com/articles/news_and_politics/jurisprudence/2016/10/john_mccain_s_scotus_comments_reveal_a_lot_about_the_gop.html
[2] Ibid.
[3] “Article II." LII / Legal Information Institute. Accessed October 27, 2016. https://www.law.cornell.edu/constitution/articleii.
[4] "Issues — Senator John McCain, Arizona." Senator John McCain Arizona. Accessed October 27, 2016. http://www.johnmccain.com/issues/.
[5] "The 2016 Republican Party Platform." GOP. 2016. Accessed October 27, 2016. https://www.gop.com/the-2016-republican-party-platform/.
[6] "Issues — Senator John McCain, Arizona." Senator John McCain Arizona. Accessed October 27, 2016. http://www.johnmccain.com/issues/.
[7] "The 2016 Republican Party Platform." GOP. 2016. Accessed October 27, 2016. https://www.gop.com/the-2016-republican-party-platform/.
[8] Ibid.
[9] "About Us." : The Federalist Society. Accessed October 27, 2016. https://www.fed-soc.org/aboutus/.
[10] Heine, Debra. "Democrats Set The Rules on Blocking Judicial Nominations." PJ Media Trending. February 15, 2016. Accessed October 27, 2016. https://pjmedia.com/trending/2016/02/15/democrats-set-the-rules-on-blocking-judicial-nominations/.

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