Faculty Blog, Friedman

Moving Forward: Supreme Court Appointments After Kavanaugh

In the wake of Justice Antonin Scalia’s passing in early 2016, the Republican-controlled U.S. Senate declined to give its advice on President Barack Obama’s nomination of Judge Merrick Garland to the high court, much less its consent. That move, along with the Republican-led elimination of the filibuster for Supreme Court nominations, has led to a confirmation process that is, as the many days of hearings on Judge Brett Kavanaugh demonstrated, essentially pointless. Even the nominee himself was indignant that some senators on the judiciary committee expressed interested in actually investigating his character and fitness for a post on the high court.

Even before the hearings began, current Senator Orrin Hatch observed that, while the judicial appointment process may not be broken, “it has been mauled pretty badly.” This from a senator who, at the time, defended both the Republican refusal to hold a hearing on Merrick Garland’s nomination and the end of the filibuster rule.

The Republicans, including Hatch, tend to blame the Democrats and point to the rejection of Robert Bork, nominated by President Ronald Reagan a generation ago. But they engage in false equivalence. The price of Bork’s rejection was not the integrity of the confirmation process itself. Nor was it particularly troubling. After all, the process exists to vet potentially lifetime appointments to the nation’s highest court; it follows that some nominees might not make it. Most of the time, potential nominees will be rejected, for one reason or another, before their names reach the members of the Senate judiciary committee.

Bork’s nomination made it to the Senate, where a majority of senators concluded his approach to judicial decision-making was out of step with the mainstream of American constitutional thought. Reagan’s replacement nominee, Anthony Kennedy, notably eschewed ideology in favor of a pragmatic approach to decision-making that most of the justices on the Supreme Court continue to embrace.

In light of this history, it’s worth recalling the specious justifications Republicans offered for their refusal to entertain the Garland nomination. In arguing that the people should have a say in deciding the Supreme Court’s makeup, they insisted that Scalia’s seat should remain empty until after the 2016 election. The argument betrays contempt for the Constitution, as nothing in the text suggests the Senate may deny a sitting U.S. President consideration of a nominee to fill a vacancy on the Court. And, of course, the people did have their say, back in 2012: at the time he submitted Garland’s nomination, Barack Obama was the constitutionally elected President.

However much Senator Hatch may wring his hands about how the judicial appointment process has been “mauled pretty badly,” the Republican goal in 2016 was never to protect the integrity of that process, or either the Senate’s or the Court’s reputation. It was, and remains, political power: Republicans view the Supreme Court as a vehicle for securing policy results and outcomes that either fit with their ideological preferences or please their constituents, or both.

Perhaps it goes without saying that this is not the system the framers contemplated. They envisioned an independent judiciary, as set apart from the vicissitude of daily politics as they could contrive to make it. They likely could not have imagined our hyper-partisan two-party state, or the extent to which the Supreme Court would come to play such a pivotal role in so many controversial issues in American life.

Now Democrats, should they recapture a majority of seats in the Senate, are giving serious thought to court-packing—to legislating an increase in the Supreme Court’s membership and stacking the Court with their preferred kind of judge. Critics have argued that such an effort would undermine the rule of law and diminish the Court’s role. But the fact is that Republicans, due to their refusal even to allow the Senate to provide its advice on the Garland nomination, as well as their abandonment of the filibuster rule, have already invested in their own court-packing plan. If Republicans should ever lose control of the Senate, they will have little standing to complain if the Democratic majority pursues a transparent effort to shape the Court. Sometimes there is a price to pay for mauling the Constitution.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.