Two Sides: Professors on the Supreme Court
Constitutional scholars, Supreme Court commentators and judges and lawyers have long debated whether the Supreme Court is more of a political or legal institution. Given that the justices normally resolve cases implicating unclear constitutional text, contested history and fuzzy precedents, it is not surprising that they have significant discretion to decide cases consistent with their personal values and partisan leanings. How much is law and how much is politics in Court decisions is a question that will never go away, but one thing is certain: the decision by Senate Majority Leader Mitch McConnell to deny President Obama the opportunity to replace Justice Scalia will increase the political and partisan nature of our highest Court and the process used to make appointments to that institution.
Historically, when the presidency was held by one political party and a majority of the Senate was held by the other party, there have been rough confirmation hearings but eventually presidents have been allowed to make the selections. Not so in 2016 when the Senate refused for almost a year to even hold hearings on President Obama’s nominee, Merrick Garland. Although such stonewalling did not violate the Constitution in light of the Senatorial prerogative to give “advice and consent” on all nominations, it did transgress long-held customs and norms.
The next time the Democrats are the majority party in the Senate and a Republican is in the White House, you can bet that the Senate will not go along with any nominee to the Court. McConnell’s gambit, though successful for his party in the short run, will in the long run make the Court more political and more partisan and that, sadly, is not in the interests of the Court, the Congress, either political party or the country.
Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, teaches Federal Courts and Constitutional Law I and II. He is the author of the book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges.
When Justice Scalia died last February, it became President Obama’s constitutional duty to nominate a successor. He did so, nominating Merrick Garland, an eminently qualified jurist whom even Republican Orrin Hatch had deemed an acceptable nominee, to the Court. Recalcitrant Senate Republicans refused even to consider the nomination, thus breaching their constitutional duty to advise in good faith.
While Senate Republican leader Mitch McConnell’s recalcitrance may look inspired now, the Republican candidate having won the election, such bad faith behavior has consequences. Among its consequences should be a refusal of Senate Democrats to vote to confirm any judicial nominee who shares the Trumpian-Republican vision of a Constitution which, among other things, would deny a woman the right to control her own body, would give corporations more power to control democratic debate than people, would deny to workers the right to organize and would emasculate federal environmental and other controls in favor of state “experimentation.”
Over the next four years, whenever a judicial confirmation is under consideration, especially to the U.S. Supreme Court, Senate Democrats should articulate clearly their alternative constitutional vision and not appear to endorse, by voting to confirm, anyone who opposes it, however “qualified” that nominee seems to be. Qualification for the Court is about more than having the appropriate legal or judicial experience. It is about having a constitutional vision vetted through the judicial confirmation process.
Democrats are likely to lose the battle over Scalia’s successor. They may even lose another couple of battles over the next few years. But they should take the opportunity to articulate a clear alternative constitutional vision, so as to give voters, in 2018 and 2020 and beyond, a clear choice.
Patrick Wiseman, professor of law, teaches Constitutional Law and related courses, all of which are about the U.S. Supreme Court.