While it would be impossible to eliminate any and all vestiges of partisanship in the confirmation process, today’s bruising and unduly intrusive partisan confirmation battles have gone entirely too far. Today they threaten to convert the Court’s members themselves into partisans; something our framers never intended.
Without suggesting that new members of Court may attempt to settle scores because of the unfair treatment they receive during the confirmation process, there is a real risk that if appointees come to see themselves as partisans—instead of independent representatives of the country as a whole—it could affect their behavior on the Court.
Consider: judicial appointees across the board are increasingly subjected to election style political campaigns including all of the associated fundraising, attack ads, political consultants and grassroots activity. Even lower court nominees face a confirmation process which would rival modern congressional campaign races or in the case of a few judges like Janice Rogers Brown even expensive Senate races. And tragically, the campaigns to fill vacancies on the Supreme Court today compete with the costs associated with a presidential primary race.
Due to the heightened partisanship we’re witnessing the trend is likely to get much worse before it improves.
And as can be seen, all of the worst parts of campaigns have become de rigueur in fights over the Court. The “make ‘em deny it” brand of attack politics, false accusations of extremism and the extensive effort to “dig up dirt” all done in an almost completely partisan manner can only alienate those forced to endure it. Is it any wonder that increasingly some legal scholars and jurists simply decline consideration for the courts altogether?
Invasive investigations that begin the moment nominees are named, confirmation hearings that resemble grand jury meetings, and now the unwarranted use of the filibuster could perhaps be tolerated if their appearance weren’t so patently partisan. To put it more pointedly, were these things occurring as part of a bipartisan effort representing some effort by the Senate to establish a greater institutional role in the confirmation process, successful appointees, while still perhaps unhappy about the experience, would nevertheless be less impacted by the experience.
But in today’s partisan atmosphere, a potential nominee will likely be reported out of committee solely on a partisan basis; he’ll be threatened with a filibuster—again solely on partisans lines; and will likely receive fewer than a half dozen votes from members of the opposition party. Is it any wonder that he too may feel pulled along partisan lines?
When a nominee’s competence, legal skill, and experience are evaluated on what appear to be solely partisan bases, it can’t go unnoticed by the nominee. And finally even the most evenhanded nominee can’t help but notice who their attackers are throughout the hearings and equally as important who their defenders are.
There are two consequences to this state of affairs. First, in the short run, the decisions of judges unduly affected by partisanship begin to appear. Due to the large number of new appointees by Republican presidents (note: GOP has won 5 of 7 of the last presidential elections) groups like People for the American Way will come to quickly regret such a turn of events.
But perhaps most consequential is that in the long run, the appearance of partisanship is recognized by the public at large. Such awareness can only erode the public’s trust and the expectation of independence by our courts. And once the public concludes that the Court is a partisan body no different in operation from the Congress or the presidency, the very rationale of the Court’s purpose will be called into question. That would lead to a massive loss of the Court’s moral authority. And when you command neither the army nor the power of the purse, moral authority is a critical tool in maintaining your legitimacy.
Our federal system of government is predicated on having three branches of government checking and balancing one another. The modern Supreme Court confirmation process has created a hybrid that is ahistorical and which, if unchecked, will eventually undermine the power and independence of the Courts.
It is ironic that this new process which is so destructive has been advocated by many of the people who claim to care most about the integrity and authority of the Supreme Court. But unless it comes to an end, severe harm will be inflicted on the Court. Perhaps Justice Alito can be principled enough to rise above the unfair smear and unwarranted filibuster. But will the next nominee who is subjected to even more depredations be able to?