When Justices Become Super-Legislators...

When Justices Become Super-Legislators, Confirmations Must Become Political
Carol Platt Liebau
Monday, May 17, 2010

For the first time in the post-Bork era, the nomination of a Democratic president’s nominee to the Supreme Court has drawn immediate loud, outraged opposition from many on the right. Clinton appointees Ruth Bader Ginsburg and Stephen Breyer, like Obama nominee Sonia Sotomayor, were confirmed after largely uneventful, polite, even apolitical hearings – and with a respectable smattering of Republican support.

In contrast, the hearings of Clarence Thomas and Samuel Alito devolved into political spectacles, with Democratic senators them of being anti-woman and anti-minority, respectively. And during the hearings for Chief Justice John Roberts, the National Abortion Rights Action League – Democrats’ political allies – actually attempted to link Roberts to abortion clinic violence.

So what explains the fact that only now are Republicans starting to oppose Democrat nominees with the same political vigor that’s long characterized the Democrats’ response to Republican presidents? Part of it may be because Republicans have finally realized that if all their presidents’ nominees are labeled as “extremists” and dragged through the mud – yet they themselves continue to tip their hats and nod politely to left-of-center nominees – the result will be a definition of “mainstream” jurisprudence that falls ever farther to the left on the political continuum. But there’s more to it than that.

The statements accompanying the last four Supreme Court nominations are instructive. President George W. Bush praised John Roberts and Samuel Alito for their accomplishments, abilities, fairness and civility. Those qualities are reminiscent of the criteria for the Supreme Court in the pre-Bork era – a time when Justice Antonin Scalia could win confirmation by a vote of 98-0 – when there was general agreement that the substance of a judge’s personal views were supposed to be irrelevant to judicial decision making.

In contrast, President Obama has heralded the substance of his nominees’ views. He lauded the “empathy” of Sonia Sotomayor, and her understanding "about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation." Similarly, he has extolled Elena Kagan’s “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.”

In other words, President Obama has endorsed jurisprudence that’s less about what an impartial application of the law requires than about the judges’ preconceived, subjective opinions about what’s best for “the people.” The problem, of course, is that in a democratic republic, such policy-driven determinations are supposed to be the province of elected politicians – not of elite judges with life tenure, completely insulated from any meaningful accountability for their decisions.

But as long as President Obama (and other Democrats like him) continue to seek judges based on their policy preferences rather than their commitment to interpreting the Constitution as written and intended by the Founding Fathers (and as ratified by the people), the post of Supreme Court Justice will inevitably be a political one. And so – like it or not – Republicans have no choice but to follow the Democrats’ example of treating judicial nominees like political punching bags, rather than as decent, accomplished – and presumptively impartial – jurists.