Life Tenure And Recognizing The Politics Of The Supreme Court

By Big Tent Democrat, Section Supreme Court
Posted on Sat Apr 24, 2010 at 09:42:55 AM EST
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Linda Greenhouse writes:

[W]hy do other countries not suffer from the same toxic confirmation battles that we do? It’s not because the United States Supreme Court maintains a hotter docket. Courts in other countries frequently decide cases with major implications for domestic politics. The Canadian Supreme Court declared that country’s abortion law unconstitutional in 1988. In 1995, the brand-new South African Constitutional Court struck down the death penalty.

Rather, structural differences are what seem to matter: how justices are appointed, how long they serve — and also how they behave once on the bench. No other country has adopted the U.S. model of life tenure for judges. High-court judges typically serve for a single nonrenewable term of 9 to 12 years — a period during which Supreme Court justices in the United States are just getting warmed up.

Therein lies the answer - the Supreme Court is a political institution - one of the three political branches of the federal government. But unlike the others, once in office, Supreme Court Justices are exempt from the accountability the other two political branches face - elections. Because of that, all of the politics of the Supreme Court show up in the confirmation hearings and, to a lesser extent, in Presidential elections (a real shame imo, it should be a first line issue in every Presidential election.) More . . .

But after all the sturm und drang, very rarely are Presidential nominees to the High Court rejected. It's more show than substance. This is a result of two factors, both bad for progressives and Democrats: (1) After Bork, Republican Presidential SCOTUS nominees are all confirmed no matter what. For all the talk of opposition, the Democrats fear blocking a Republican's SCOTUS nominees. As a result, people like Samuel Alito and Clarence Thomas sit on the Court, though they both could easily have been rejected. (2) Democratic Presidents tailor their picks to avoid concerted opposition from Republicans. Since, LBJ, no Democratic SCOTUS pick has been as ideologically liberal as Republican picks have been ideologically conservative.

Consider the picks for the Dems -- Ginsburg, Breyer and Sotomayor. Now consider these picks for the Republicans -- Rehnquist, Scalia, Thomas, Roberts, Alito.

What woulds be the equivalent of the ideological nature of Dem picks would be Stevens, Souter, O'Connor and, to some extent, Kennedy. The Dems do not pick their Scalias and Alitos. The Republicans do.

Will the next pick be different? Not likely. Even Diane Wood would be a very mainstream pick; her views would fall in line with Justice Ginsburg's in my view.

The next GOP pick (hopefully a long time from now)? Look for a Roberts/Alito type.

Speaking for me only

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Life Tenure And Recognizing The Politics Of The Supreme Court | 13 comments (13 topical)

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Yes, when the Democrats (5.00 / 2) (#2)
by KeysDan on Sat Apr 24, 2010 at 10:26:11 AM EST

could not find the votes to block Clarence Thomas, it sure seemed that any Republican nominee to the Court thereafter would be a slam duck, save for a pointed television-ready question here or there during confirmation hearings. Even the aftermath, such as criticisms of Biden's handling of the hearings, David Brock's mea culpa, Mayer and Abramson's devastating reporting, taught them nothing And, what comes closest to home for them, namely, loss of their senate seat, for example, Alan Dixon (D, Il) did not seem to register.

WHAT confirmation battles? (1.00 / 2) (#7)
by Yes2Truth on Sat Apr 24, 2010 at 12:14:17 PM EST

A liberal could just as easily respond the same way to questions as right-wingers do.

"Judge, does the Government have the right to
control a woman's decision about terminating a pregnancy?"

"Senator, I haven't really thought about that particular question and I wouldn't think it's appropriate for me to speculate on a matter which might come before the Court."

"Judge, in your view, is the issue one of a woman's right to choose or is the proper framing a matter of the government's right to make that decision for her?."

"Senator, again, I don't believe it would be appropriate for me to comment on that since it
involves an issue which might come before the Court. Let me just say that I respect the legal
doctrine of stare decisis and believe that the proper role of the Court is to decide legal issues, not political ones."

Pick any issue, but none of this matters because
right-wing Presidents (including President Blackbush) simply aren't going to nominate anyone
for the Supreme Court if that person is known to (even occasionally) favor individual rights over government/corporate rights.

Lets be realistic here.

: "President Blackbush"? (5.00 / 2) (#9)
by gyrfalcon on Sat Apr 24, 2010 at 05:03:21 PM EST

Excuse me?

And that despite the fact (none / 0) (#1)
by ruffian on Sat Apr 24, 2010 at 10:22:29 AM EST

that I've never met anyone who switched over to the Republicans because of how the Dems treated Bork. What are the Dems so afraid of?

That's the (none / 0) (#4)
by JamesTX on Sat Apr 24, 2010 at 10:54:50 AM EST

question! This is a confusing time in our political history. Even though we have elected Dems, they are voting and behaving against our interests, and they offer no explanation. Nor do most of us offer any questions!

We have neglected the court for so long I am not sure it can be fixed. The Alito-Roberts-Scalia element is frightening, and for the most part they are a long way from joint pain and Social Security. When Dems only get to appoint moderates for fear of "outrage", and the thugs get to appoint the most vicious and radical of their species, there is only one possible result over time. Drift. Relatively rapid drift. Just like it has and will continue.

I watched Pirate Radio last night. I think liberals are in that good news/bad news sort of position! The good news is we are going to die, the bad news is we are going to die with no civil liberties!


The Democratic party (5.00 / 1) (#5)
by andgarden on Sat Apr 24, 2010 at 11:04:13 AM EST

has all of the diversity of america (ideological and otherwise). In that context, we are lucky to end up with people like Ginsburg on the Court.

I think it would take 30 years of Democratic control of the Executive branch to fix the judiciary.


Yes, in making (none / 0) (#8)
by JamesTX on Sat Apr 24, 2010 at 04:41:42 PM EST

my observations I should always be grateful for the justices we have. They have held the line remarkably. At risk of appearing ageist, though, most are getting a little long of tooth and it is going to take a miracle to have their replacements not represent some slight additional creep to right. They will be hard to replace in a way that doesn't represent a loss for the left.


Replacing any one of the (5.00 / 1) (#10)
by andgarden on Sat Apr 24, 2010 at 05:30:05 PM EST

conservative 5 with even a Breyer equivalent would be far more impactful (in a positive way) than replacing Ginsburg with a Breyer.


Absolutely. (none / 0) (#11)
by JamesTX on Sat Apr 24, 2010 at 07:11:36 PM EST

Ginsburg and Stephens are going to be hard to replace. People like me are simply going to lose on those appointments. It's like losing a parent. They can't be replaced. The two oldest are our two most important, so what happens here soon is terribly important for the future. Unfortunately, it doesn't look good.

Replacing the other seven isn't going to happen soon, but the composition of the court affects future attitudes and possibilities. So, we will lose some of the last, precious anchoring ideology when we lose Stephens (and then probably Ginsburg). The effects will be to strengthen the right politically and lower the chances that future appointments will be better. By that I mean the feedback effects of things like the campaign finance ruling. The composition of the court now affects political attitudes (by ruling they can be purchased outright) which will shape future appointments. On first guess, that means it will push the replacements of Kennedy and Breyer toward something worse, even if just slightly. It looks like the dawn of a dark age for American justice, and a bleak outlook for those who don't have wealth.

I wish we hadn't let this happen. I cried in vain while what is now progressive and moderate America went through 30 years of embracing apolitical lifestyles and ignoring what the right was doing to the court. They sold the last and most important part of it for a fantasy about a beer with a rich cowboy, and I'm not sure we can recover. When it was happening, the fact was that people didn't fully understand the system -- they didn't really know about the life terms (apolitical apathy). That knowledge only became widely available in apolitical social circles in recent appointment battles. It's too late now, I suspect.


: And what's so ironic is that the right (none / 0) (#12)
by observed on Sat Apr 24, 2010 at 07:42:13 PM EST

has been completely explicit about their aims, all of which should horrify anyone to the left of
Franco.

: If the Republicans get to replace Kennedy (none / 0) (#13)
by andgarden on Sat Apr 24, 2010 at 09:25:32 PM EST

we're going to have a really serious problem. OTOH, if a Democrat gets to make an appointment for any unexpected vacancy of either Scalia or Thomas, we could see some real progress.

Limited single (none / 0) (#3)
by oculus on Sat Apr 24, 2010 at 10:33:06 AM EST

term by appointment of Pres. w/o confirmation hrg.? Somehow I think there would still be a huge fuss

A Somewhat Relevant Point (none / 0) (#6)
by The Maven on Sat Apr 24, 2010 at 11:37:36 AM EST

that doesn't diminish from your thrust that Democratic presidents should be far more robust in making ideological nominations: Linda Greenhouse asks why other countries don't have the same sort of "toxic confirmation battles" that we do, and points to high profile decisions from Canada and South Africa. What she fails to disclose, however, is that the judges in those nations do not face any form of confirmation procedure -- they are simply selected and placed on the court. (The same is also true for the new court in the UK, though a selection commission is involved there.)

Greenhouse later notes,

Many other systems require confirmation by a legislative supermajority . . . which tends to drive appointments to the middle of the political spectrum. While the supermajority rule may look much the same as the need to find 60 votes in the U.S. Senate to overcome a filibuster, there is a big difference. A filibuster is a power play, a manifestation of political meltdown, while a rule that is hard-wired into the system is politically neutral and permits everyone to plan ahead.

But for better or worse, the filibuster has become hard-wired into our system to such a degree that it also permits "everyone to plan ahead". Regrettably, this means that the Republican president can plan to have his Senate allies threaten to employ the nuclear option should it appear that a cloture vote would fail, while a Democratic president simply plans to aim for the "center" in terms of judicial nominations. This same dynamic appears to be the case for Circuit Court nominations as well, much to our loss.