A Warning For The Future of Supreme Court Nominations

Since I said the other day that I'm not a fan of certain pundits, I figured I ought to be a little more positive today, and share with you someone whose opinions I respect. He and I may not agree on everything, but we have good discussions, and he's been a great friend - someone I'm happy is in my corner (or in whose corner I'm happy to be, depending on your perspective).

His name is Horace Cooper, and he teaches law out at George Mason. Staunchly conservative, Professor Cooper was, interestingly enough, someone who offered a moderating voice when it came to potential fights over Supreme Court nominees - not that he wanted to compromise on the philosophies of those nominees, no, far from it. He just was concerned over the impact of a bitter, scorched earth, partisan fight.

I offer today his insights into why, a well-considered, thoughtful and excellent piece of writing:

58-42: Alito Confirmed
By Horace Cooper

Feb 2, 2006

The 58-42 vote for Judge Samuel Alito to be the 110th Supreme Court Justice could very well culminate in a detrimental change in the role and operation of the Supreme Court.

Progressives think that this is because Justice Alito will replace the so-called swing vote of moderate Justice Sandra Day 0’Connor. No, the risk is that the bitter partisanship associated with his confirmation could undermine the Court’s independence and authority.

In taking his oath of office, Justice Alito received a reward for years of accomplished legal scholarship. He and Mrs. Alito will understand why Judge Alito was rated well qualified unanimously by the ABA , why his clerks publicly advocated his confirmation, and why the members of the 3rd Circuit who served with him uniformly endorsed his integrity and judicial fitness.

But will Judge Alito understand why he received fewer than 60 votes (including only 4 votes from Senate Democrats) or why a filibuster was attempted against him? Will he understand the necessity of charges that he was a closet bigot or worse? Will he accept as necessary the misuse of his judicial decisions and related smear attacks (which at one point caused his wife to leave the hearings in tears)?

Let’s hope so.

For the past 20 years the Senate judicial confirmation process has become more and more dysfunctional. But now thanks to special interest groups like the People for the American Way and their handmaidens in the U.S. Senate like Senators Kerry and Kennedy, the smear attacks and personal assaults have escalated to the point that nominees increasingly see themselves more as battle-ready legal warriors rather than neutral, disinterested jurists.

It’s not simply that even with his distinguished record and legal acumen, Justice Alito received a staggering twenty-five or more votes fewer than Justices Breyer, Scalia, Stevens, Souter, Ginsburg, and Kennedy. It’s also not simply that Republicans ran the Senate when Justices Ginsburg and Breyer were easily confirmed. And it’s not simply that Alito’s judicial track record and writings were not any more controversial than those of Justices Ginsburg, Scalia or Stevens. It is that all of these facts and others combine to make his confirmation experience among the most partisan in a generation. And since the framers intended for national presidential elections to be the primary tool for influencing the make-up of the Supreme Court this change is both ahistorical and counter-productive.

While it would be impossible to eliminate any and all vestiges of partisanship in the confirmation process, today’s bruising and unduly intrusive partisan confirmation battles have gone entirely too far. Today they threaten to convert the Court’s members themselves into partisans; something our framers never intended.

Without suggesting that new members of Court may attempt to settle scores because of the unfair treatment they receive during the confirmation process, there is a real risk that if appointees come to see themselves as partisans—instead of independent representatives of the country as a whole—it could affect their behavior on the Court.

Consider: judicial appointees across the board are increasingly subjected to election style political campaigns including all of the associated fundraising, attack ads, political consultants and grassroots activity. Even lower court nominees face a confirmation process which would rival modern congressional campaign races or in the case of a few judges like Janice Rogers Brown even expensive Senate races. And tragically, the campaigns to fill vacancies on the Supreme Court today compete with the costs associated with a presidential primary race.

Due to the heightened partisanship we’re witnessing the trend is likely to get much worse before it improves.

And as can be seen, all of the worst parts of campaigns have become de rigueur in fights over the Court. The “make ‘em deny it” brand of attack politics, false accusations of extremism and the extensive effort to “dig up dirt” all done in an almost completely partisan manner can only alienate those forced to endure it. Is it any wonder that increasingly some legal scholars and jurists simply decline consideration for the courts altogether?

Invasive investigations that begin the moment nominees are named, confirmation hearings that resemble grand jury meetings, and now the unwarranted use of the filibuster could perhaps be tolerated if their appearance weren’t so patently partisan. To put it more pointedly, were these things occurring as part of a bipartisan effort representing some effort by the Senate to establish a greater institutional role in the confirmation process, successful appointees, while still perhaps unhappy about the experience, would nevertheless be less impacted by the experience.

But in today’s partisan atmosphere, a potential nominee will likely be reported out of committee solely on a partisan basis; he’ll be threatened with a filibuster—again solely on partisans lines; and will likely receive fewer than a half dozen votes from members of the opposition party. Is it any wonder that he too may feel pulled along partisan lines?

When a nominee’s competence, legal skill, and experience are evaluated on what appear to be solely partisan bases, it can’t go unnoticed by the nominee. And finally even the most evenhanded nominee can’t help but notice who their attackers are throughout the hearings and equally as important who their defenders are.
There are two consequences to this state of affairs. First, in the short run, the decisions of judges unduly affected by partisanship begin to appear. Due to the large number of new appointees by Republican presidents (note: GOP has won 5 of 7 of the last presidential elections) groups like People for the American Way will come to quickly regret such a turn of events.

But perhaps most consequential is that in the long run, the appearance of partisanship is recognized by the public at large. Such awareness can only erode the public’s trust and the expectation of independence by our courts. And once the public concludes that the Court is a partisan body no different in operation from the Congress or the presidency, the very rationale of the Court’s purpose will be called into question. That would lead to a massive loss of the Court’s moral authority. And when you command neither the army nor the power of the purse, moral authority is a critical tool in maintaining your legitimacy.

Our federal system of government is predicated on having three branches of government checking and balancing one another. The modern Supreme Court confirmation process has created a hybrid that is ahistorical and which, if unchecked, will eventually undermine the power and independence of the Courts.

It is ironic that this new process which is so destructive has been advocated by many of the people who claim to care most about the integrity and authority of the Supreme Court. But unless it comes to an end, severe harm will be inflicted on the Court. Perhaps Justice Alito can be principled enough to rise above the unfair smear and unwarranted filibuster. But will the next nominee who is subjected to even more depredations be able to?

Horace Cooper is an Assistant Professor at George Mason University School of Law.

Copyright © 2006 Townhall.com


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