With Supreme Court Justice Anthony Kennedy’s announcement that he will be retiring within the upcoming month it looks like President Donald Trump will very soon have the opportunity to nominate and confirm another constitutionally-minded person to the Supreme Court.
Indeed, Senate Majority Leader Mitch McConnell (R-KY)is already preparingto have the Senate potentially confirm President Trump’s nominee before the November 2018 midterm elections.
While we still have a few days until President Trump announces his pick, currently scheduled for July 9, speculation is ranging widely. Yet President Trump has said he will likely be sticking to the initial 20-person list he described during the 2016 election, including five more names to that.
Under our Constitutional framework, the Supreme Court is one of our three co-equal branches of government. However historically and even in recent years, that theoretical understanding has been marred by the complexities of reality.
Given the Supreme Court’s appointed and lifetime nature, small staff, as well as far more reclusive activities in comparison to the high-publicity executive and legislative branches, it seems people often feel it is either doing too much or too little.
Indeed in recent years the Supreme Court has been particularly active, ruling on a wide-range of divisive social, cultural, and economic issues that have led it to be a far more partisan battleground
than it was in prior decades.
Too often now when the Supreme Court rules in favor of one side, we praise it as if it were a legislative vote. If the policy results are against what we hoped for, we deride it. While such a paradigm would be sensible were we talking about policy making channels, it has been warned for a long time – particularly by a society I have been a leader in and still am part of,the Federalist Society– that it would lead down a dark and tumultuous road for our nation’s long-term health.
And, well, here we are. The Supreme Court is now less seen as a final interpreter of our laws and arbiter of the Constitution but rather as just another political battleground.
Before saying I am too idealistic, remember there was a time not too long ago when Supreme Court nomineeswere largely confirmed eitherin an almost unanimous roll call or even by voice vote. This lax-attitude coincided with the Supreme Court largely refraining from major policy intervention except in the most clear-cut Constitutional and legal cases.
When we think of how even a solid and experienced nominee like now-Justice Neil Gorsuch was only confirmed in a divisive 54-45 vote, that three of President Ronald Reagan’s nominees were confirmed 99-0, 98-0, and 97-0 almost seems surreal.
An immense irony is that previously the filibuster, which could have stopped Justice Gorsuch’s nomination and Justice Kennedy’s replacement, was a cultural norm in the Senate until Democrats did away with it in 2013.
To be fair, it is worth noting that in 2013 Congressional Republicans were holding up dozens of lower court nominations through what one could argue was less adherence to investigatory processes but rather more of a political power-play.
In the meantime other occasionally followed practices, such as the “Biden Rule” fornot having confirmationsin key election years, have been thrown to the wayside slowly bit-by-bit as well.
While all these rules were once part of the webbing that kept our legislative branch collegial and functional now they too are seemingly a relic of the past amid our politically contentious national climate.
As the nominations process begins to move forward for Justice Kennedy’s replacement, both sides will be rolling out bumper-sticker arguments that belie the immense historical, legal, and political complexity of the role of the Supreme Court in American society and the process of filling and checking it.
Given the reality of human nature, it can be expected that we will always have a level of partisanship and politics in even those institutions that are theoretically impartial and above the fray.
Nonetheless, that doesn’t mean we should do our best to try to create neutral grounds and keep the policy battles where they belong. The alternative – of politicized institutions, such as the IRS scandal – has already created immense distaste and polarization among the American people.
Though the Supreme Court is just one piece of our government, it is an essential one with major impact across our entire society, as we’ve especially seen in recent years. The nomination of another constitutionally minded Justice will do a long way in restoring the Court’s proper role and nature, but the broader and longer-term view is important as well and we, the American people, have a key role and duty in determining it.