Despite the fact that courts, particularly the Supreme Court of the United States (SCOTUS), are supposed to be apolitical, both the left and right don’t respect that principle. There are very valid reasons why US Supreme Court Justices are appointed for life. The most important of which is to be free from politics and retribution from the other branches of government, as well as the voters. This theoretically allows the court to render impartial and unbiased decisions, based on the Constitution and precedent. The most obvious case where it worked effectively was when President Richard Nixon was ordered to turn over the Watergate tapes, despite his claim of Executive Privilege. But that’s not what I want to focus on here. I want to focus on how the Democrats are equally guilty of being partisan when it comes to confirming Justices to the Supreme Court.
Justice Stephen Breyer has announced his retirement from the Court following the end of the current term in June. His announcement sets up another battle in the Senate for who will be the next Supreme Court Justice. One thing that won’t come in to play, is President Biden’s right to choose a nominee, with three years remaining in his term.
We now know that DC Circuit Judge Ketanji Brown is his choice. Justice Brown appears to be a very competent choice even though she might be more liberal than some would like. But the President is a Democrat and the Senate is controlled by the Dems, so she should sail through. I’m even optimistic that a few Republicans might vote to confrim.
Although she might not have wanted it, I think Michelle Obama would have been a very good choice. Never mind that she’s never been a Judge (not a requirement for nomination and appointment). She’s hugely popular, smart as heck and has the “proper credentials” having graduated from Princeton University and Harvard Law School. The nomination of Kamala Harris, although hugely unpopular, would have freed the President of one of his greatest liabilities, while fulfilling his promise. It didn’t happen, but it would have been interesting.
The Democrats are still upset at the appointment of Amy Coney Barrett, even though they would have done the same. It may have been ruthless politics but certainly not illegal. As most people are aware, there’s a 6-3 majority in the favor of Republicans or Conservatives. It just so happens, by circumstances, that President Trump appointed three Justices. All were confirmed along party lines with almost no support from Democrats. Neil Gorsuch, was confirmed with the support of just three Democrats, (Donnelly from Indiana, Heitkamp from North Dakota and Manchin from West Virginia). Manchin’s vote will not necessarily be a slam dunk for Democrats.
The Democrats did everything they could to disgrace and find reasons for why all three weren’t acceptable, in particular, Kavanaugh and Coney Barrett. It reminded me of the Clearance Thomas affirmation. Bringing in Anita Hill and the infamous pubic hair, was terrible theater and never proven. He was appointed to the court in 1991 where he has served admirably, despite the fact that I might not agree with all of his decisions.
The Democrats were successful in their opposition of Ronald Reagan’s choice, Robert Bork, in 1987 by a vote of 58-42. The opposition to his confirmation was mainly due to his criticisms of the Warren and Burger Courts. But he was accused and ultimately defeated because of what the Democrats deemed his opposition to the Civil Rights Act. Whether that’s true or not is based purely and solely on where one stands politically. It’s important to never forget that Supreme Court Justices are supposed to determine Constitutionality, not to legislate. Justice Anthony Kennedy was ultimately confirmed to serve on the Court by a 97-0 vote.
When Justice Sonia Sotomayor was nominated in 2009, by President Obama, she was confirmed by a 68-31 vote in the Senate. Eight Republicans including Phil Graham and Susan Collins voted for confirmation. One year later, when Eleanor Kagan was nominated by President Obama, she was confirmed by a vote of 63-37. Five Republicans including Phil Graham and Susan Collins again voted to confirm. Senator Joe Lieberman, a conservative independent, also voted Yea. Democrats do a great job of painting the Republicans as unreasonable, and partisan, but they certainly were willing to reach across the Isle in both confirmations. Facts don’t lie.
Being liberal or progressive (a word I wholeheartedly reject) seems to conjure up feelings of superiority. There are liberal policies that are regressive such as the legalization of marijuana. No one should go to jail for possession, only the dealers should be prosecuted, but legalization is only about tax revenue, not progress. They don’t care that so often drug addiction starts with marijuana. The party’s narrative is “We are on the correct side of history” and anyone who opposes us, is on the wrong side. They aren’t interested in the Constitution per se, but rather that whoever is appointed, is on their side.
I’m not unfairly criticizing Democrats, but it is important to call them out. Republicans are no different. The hypocrisy of the Republicans is about to be on full display. There will be some nonsense about why we shouldn’t rush the process. The nominee, even before being chosen and presented for confirmation, will be unacceptable. Is there a candidate that would be acceptable to the Republicans? Probably not. That person would need to be anti-abortion, religious, conservative. Trump appointed three Trump Justices, Gorsuch, Kavanaugh and Coney Barrett, all fit that mold. Although Gorsuch has disappointed Trump at times which is what Justices are supposed to do if ruling according to the Constitution, he is only the 3rd most conservative Justice according to the Martin-Quinn score. It will be a battle, but of course only a simple majority of the Senate is needed to confirm Biden’s choice. So assuming (and this might be a big assumption) Manchin and Sinema, vote with their party, whoever Biden chooses, will ultimately be confirmed, with the VP as the tie breaker.
In closing, Democrats are no better than Republicans in their partisan politics unless you agree with them. They are only concerned about pushing their agenda, because it’s “better” and more “progressive” than the Republican agenda. I define politics as the control over the narrative and resources. In which case, we can all agree that politics isn’t about what’s best for the vast majority but rather your side. It’s a sad commentary. The legitimacy of the court shouldn’t be judged by the balance, of the Court. It should be judged by the quality of the Justices serving and their ability to interpret the US Constitution, and case law to make decisions. I am hopeful that whoever President Biden chooses, will interpret the law and not legislate; to carry out the duty of the Court as the Framers intended.