Toward better Supreme Court nominees

The upcoming debate over the nomination to the Supreme Court will be epic. Those of us who are opposed are adamantly opposed, and the folks in favour have too much to gain to offer anything other than fevered, fervent support along with bullying of opponents. It really doesn’t have to be that way.

A real-life friend posted something on Facebook that struck a chord with me:

Am I the only one who thinks that the Supreme Court should be totally Bi Partisan? No Liberal and No Conservative, No Republican, No Democrat. They should prove that they make decisions based on right and wrong and leave their personal biases at the door when they put on their robes. That should be the litmus test of how we select who gets on the Supreme Court. Then it wouldn't matter who selects them because we would have selected honorable people who hold the Constitution to a higher standard.

In a perfect world, Supreme Court justices would be NON-partisan, not bi-partisan, and they would interpret the Constitution according to the rule of law, not politics. But the reality is that that ship sailed decades ago when Ronald Reagan nominated the hyper-partisan ideologue Robert Bork to the Supreme Court. He was responsible for implementing Richard Nixon’s “Saturday Night Massacre”, the event that assured Nixon would have been impeached and then removed from office if he hadn’t resigned. [See also "Not borked", my recollections about the battle to stop Bork].

Supreme Court nominations have been more or less politicised ever since Reagan, with presidents looking, at the very least, for nominees who can be confirmed, not who is the best possible candidate. Things are worse now than ever, with the current terrible purely political nominee being a prime example of that.

Senate Majority Leader, Republican Mitch McConnell, weaponised Supreme Court nominations when he flat out refused to allow Merrick Garland to get a fair hearing in the Senate because he wanted only a Republican President to be able to nominate someone. In fact, McConnell and every senior Republican in the Senate vowed that if Hillary Clinton was elected president in 2016 they would refuse to consider ANY Supreme Court nominee from her, ever. That’s just pure partisan political gameplaying, and it betrays the Constitution and the American people.

So, the precedent of Supreme Court nominations being nothing but hyperpartisan games has now been set. Given the precedent Republicans have set, Democrats could easily choose to do the same thing if they win control of the Senate in November, and then the Republicans will do it again when they gain control, and so on.

The worst thing is, there’s not much that can be done about it. Going to some sort of merit selection of justices would require changes that are impossible, particularly the need for politicians to give up power. It would probably also require a Constitutional Amendment, something that’s so difficult to do that it’s nearly impossible.

If we change the way the US House is elected to make it better reflect the will of the people, that’s something that will eventually filter up to the Senate. Aside from that, we can hold politicians accountable: We must never—ever—let them get away with talking in slogans or pandering to people’s basest feelings. We must constantly ask them, “how?” How are they’re going to do what they say, because more often than not they—Republicans in particular—can’t answer without resorting to mere slogans and more empty blather.

What I’m saying is simple: If we want a better class of Supreme Court justices, we’re going to have to start with electing a better class of politicians.

And that’s the hardest job of all.

This post is based on a comment I was originally making to my friend’s post. For some reason, Facebook wouldn’t let me post it. It’s here instead, revised and expanded from the original version.