Sunday, September 20, 2020

Supreme Court Nominees: Time For Some Clarification

There's so much misinformation surrounding the nomination and confirmation of United States Supreme Court nominees and the history of these events that he time has come for some genuine clarification. So, here goes:

  • Again and again we hear the argument that "the people deserve to be heard" on such nominations. To be sure, Supreme Court justices are not elected and are not directly answerable to the people in the same manner as elected officials. But the people are heard within the process. Indeed, that's part of the genius of our Constitution. In this specific instance the people have been heard three times: twice when they elected a Republican president and Senate in 2016 and once again when they re-elected a Republican Senate in 2018. And in 2018 the GOP actually picked up seats in the Senate. The voters knew what they were voting for, they knew that President Trump and the Republicans pledged to nominate and confirm conservative jurists. In fact, in 2016 and again just a few weeks ago Trump released a list of names from which he would pick a nominee. So, the voters knew far more than they ever knew before and they agreed with the president. 
  • The current situation is not the same as in 2016 when President Obama nominated Merrick Garland to the Supreme Court. At that time, the presidency and the Senate were in the hands of different parties and a Democrat president was asking for a confirmation vote from a GOP Senate, many of whose members had been placed in office only two years earlier. There was a split. Today, both the Senate and the presidency are in the hands of the same party, That alone would favor allowing the process to proceed to its logical conclusion with no impediments
  • In this case, precedent is also on the side of the Republicans. When a party of the Senate and the White House are different, no one is confirmed in a presidential election year. When the parties are the same, the nomination moves forward, even in an election year as it has 29 times
  • The most recent example closest to today's situation occurred in the summer of 1968 (a presidential election year) when Democrat President Lyndon B. Johnson presented a Supreme Court nomination to the Democrat controlled senate. A few Republicans  did threaten to block the nomination. But Senate Minority Leader Everett Dirksen called them off and GOP presidential candidate Richard Nixon backed him up, arguing that the president had the right to move a nomination through a Senate controlled by his own party, even this close to a presidential election. The Republicans agreed and allowed the process to move along.
  • Significantly, Democrats have not been nearly as understanding nor agreeable as their GOP counterparts. In fact, the most contentious, virile and bruising Supreme Court nomination battles have all been waged by Democrats against nominees of GOP presidents: Bork during the Reagan presidency, Thomas under George W. Bush and Kavanaugh nominated by President Trump. Since 1982, Democrats have too often followed a "take no prisoners" approach to these nominations and turned them into highly contentious, prolonged struggles. When it comes to Supreme Court nominations, they have rewritten the book and ushered in a modern era of vicious vitriol. Sadly, each of these assaults took a tremendous toll on the fabric of our democracy. Again, in contrast, Republicans allowed the nominations of Ginsburg and other Democrat-chosen justices to proceed largely without bombast.
  • The Supreme Court confirmation process was never meant to be a sort of all out war and history shows that it can proceed in a swift and relatively orderly manner. An analysis of Senate action on Supreme Court nominees since 1900 found that it often takes less than a month for the candidate to be either confirmed or rejected, or in some cases to withdraw from consideration altogether. The average time elapsed is 25 days. Chief Justice Roberts was nominated on Sept. 6, 2005, and confirmed on Sept. 25 -- just 19 days! 
  • Supreme Court nomination deliberations were never meant to be battles over the nominee's ideological bent, political philosophy or constitutionally protected matters such as personal religious beliefs. The long-followed objective yardstick for weighing nominees included education, training, experience, integrity and matters such as judicial temperament. These were the criteria used by the American Bar Association until 1987 when it was pressured by liberals to veer off course and oppose the nomination of Robert Bork based on factors outside its widely-respected criteria. For the ABA this detour into partisanship proved permanent and the organization has never regained is standing.
  • Finally, people often cite the fact that Justice Anthony Kennedy was nominated during a presidential election year (1988) by a lame duck president (Ronald Reagan) and confirmed by a Senate controlled by the opposing party. But they conveniently leave out the fact that this occurred only after the protracted, bruising battle over Reagan's preferred nominee, Robert Bork who was relentlessly pilloried and eventually torpedoed by the Democrats. After that, the nation had little appetite for another slugfest. Reagan quickly nominated Anthony Kennedy and Democrats (maybe both weary and wary) backed off as they faced upcoming congressional contests.
Bottom line: With the presidency and the Senate controlled by the same party there should be no impediment to the proper and expedient nomination of a Supreme Court justice and vote on confirmation. Clear, objective criteria should be followed in considering and evaluating the nominee in an open, deliberative, responsible, civil manner devoid of all extraneous and irrelevant considerations. Indeed, President Trump now has a responsibility to nominate and the Senate has a similar duty to act on the nomination.

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