I see that Kent and Bill have posted their thoughts on the nomination of Judge Garland to replace Justice Scalia's seat on the Supreme Court. Here are a few thoughts of my own.
It's often said that the Supreme Court is above the
political fray that seems to consume so much of Washington. But anyone who's paying attention knows that's
just not the case. For better or worse
(certainly worse) the federal courts of our nation, and the Supreme Court most noteworthy,
are modern political animals. There are
many reasons for this plain fact, including the vast regulatory nature of our
country and the lifelong tenure that federal judges enjoy. But, by far, by a country mile (to borrow a
Bill Clinton expression), the central reason is that the courts have become the
central stage where social change occurs; or rather is mandated on the populace
instead of through the deliberative legislative process enshrined by our
Constitution.
There is no denying it, the Supreme Court is a political
entity and should be subject to the political process most harmonious with a
democratic republic: The election of a
president, which will take place in a short seven months. Some
might say that even if the Court is captured by politics we ought to try to
keep it from becoming engulfed by partisan politics. That train left the station when Judge Bork
was denied his seat at the table and was out of sight when Justice Thomas
endured his confirmation hearings. When
a government entity has the power to create rights not found in the constitution
without any input from the electorate, it has become the most powerful government
actor. Not subjecting it to the
political process makes it invincible.
To paraphrase William F. Buckley Jr:
"I'd rather entrust a seat to the Supreme Court of the United to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University."
Truth is, the politicization of the Court goes almost clear back to the beginning of our government. Jefferson tried to pack the court by setting low bars for impeachment. He was defeated when the Senate refused to remove Justice Chase from the office (VP Aaron Burr was instrumental in this process, btw.) Obviously, FDR's court packing scheme was the most blatant and transparent attempt to manipulate the Court. The Bork nomination began the truly modern process of demonizing qualified appointees. We will hear much self righteous talk from both sides of this issue. I disregard all of it-since neither side has been wholly consistent in the past either in fact or in spirit. This is a political power game which will simply have to play out. The GOP, if it is sincere, should not find itself in a flat footed position here. The Democratic party will conduct a full scale offensive here and the GOP better be ready to get out ahead of it fast.
To paraphrase William F. Buckley Jr:
"I'd rather entrust a seat to the Supreme Court of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University."
Truth is, the politicization of the Court goes almost clear back to the beginning of our government. Jefferson tried to pack the court by setting low bars for impeachment. He was defeated when the Senate refused to remove Justice Chase from the office (VP Aaron Burr was instrumental in this process, btw.) Obviously, FDR's court packing scheme was the most blatant and transparent attempt to manipulate the Court. The Bork nomination began the truly modern process of demonizing qualified appointees. We will hear much self righteous talk from both sides of this issue. I disregard all of it-since neither side has been wholly consistent in the past either in fact or in spirit. This is a political power game which will simply have to play out. The GOP, if it is sincere, should not find itself in a flat footed position here. The Democratic party will conduct a full scale offensive here and the GOP better be ready to get out ahead of it fast.