Who Judges the Judger? The Politics Surrounding the Supreme Court

Who Judges the Judges? The Politics Surrounding the Supreme Court.   

The events of the past few weeks relating to the Kavanaugh nomination to the Supreme Court have been shocking. A female University professor has been put in the pillory for accusing Kavanaugh of disgraceful behaviour some thirty years ago. Kavanaugh’s Senate defence, to me, was unedifying, mere bluster, and demonstrating conduct falling well short of any Supreme Court justice. But politics has often been the driver of the Court.

Whilst the atmosphere in which Supreme Court proceedings are conducted is almost invariably collegiate and polite, behind the scenes politics bubbles. The Supremes are no slouches when it comes to butting heads with each other, not to mention taking on the other two branches of American government.

From almost the birth of the nation, the Court challenged the rights of both the executive and legislative branches. In 1803, Chief Justice John Marshall wrote the opinion of a unanimous court in the landmark ruling in Marbury v Madison, when the court struck down an act of Congress, the Judiciary Act, 1789. It ruled the Act unconstitutional because it conflicted with the Constitution by giving the Supreme Court more authority than given to it by the Constitution.

In the face of attacks on the judiciary launched by Thomas Jefferson and some senators, Marshall maintained the status of the Supreme Court as the head of a co-equal branch of government. By asserting power of judicial review to declare acts of Congress unconstitutional, Marshall established the paramount position for the Court as interpreter of the Constitution. He handled the tricky politics like a master.

In 1954, the Supreme Court handed down a unanimous verdict in Brown v Board of Education, Topeka, Kansas. The ruling sought to end racial segregation in federal public schools ‘as soon as reasonably practicable.’ (It took more than a decade until Nixon’s busing policy resolved the issue.) The Brown case, which had five other Board of Education defendants, had already been heard by the Supreme Court but Chief Justice Fred Vinson died before a ruling was made. The new chief justice, Earl Warren, had the case re-tried and took time to persuade his fellow justices to reach a unanimous ruling. When it was given, President Eisenhower and Southern Democrats in Congress were both astonished and angry. Warren had played politics in taking the first concrete steps to end racist segregation.

The Court asserted rights against the executive branch in the Nixon Tapes case. By a majority of 8-0, the President was ordered to disclose Oval Office recordings, including the infamous ‘smoking gun’ tape. Over the years, conservative lawyers have questioned the ruling on grounds that it was more political than legal. Incidentally, the ninth justice, William Rehnquist, recused himself as he was nominated by Nixon. Here was a justice doing the right thing.

Arguably, the Court’s most political decision was the 2000 ruling in Gore v Bush, when the Supremes decided 5-4 to reverse a Florida Supreme Court request for a selective manual recount of that state’s US Presidential election ballots. The Supremes effectively handed the election to Bush. The most significant sentence of the majority opinion stated that the decision would not be regarded as a precedent. In simple terms, the ruling was political, not legal.

America has watched the grubby side of judicial politics as the Kavanaugh nomination reached the end game. On Saturday, the Senate confirmed him by 50 votes to 48 in a partisan political vote. Normally, i.e. before 1992 and Clinton, the confirmation process for a Supreme Court justice was straightforward. But over the years, politics has reared its head. It is not unusual for a nominee to get a bumpy ride, not only from the Senate but the partisan media. When Elena Kagan was nominated, I watched astonished when a Fox News person – I will not give her the title of journalist – said: “She looks like a dike, so she will be favoring women’s issues.” Yes, it happened. I kid you not.

Recently, the confirmation process has become badly skewed in the Senate where merits seem not to count and partisan politics rules. The Republicans in the Senate blocked President Obama from filling a Supreme Court vacancy in the last two years of his term for spurious and blatantly political reasons. They wanted and hoped for an opportunity for the next president, hopefully a Republican, to fill vacancies. Trump has put two conservatives on the Court.

When the Court has a vacancy, a short list of candidates is prepared by senior White House advisers. The Justice Department, the American Bar Association and many other interest groups are consulted and temperatures taken. The FBI carries out background checks.

Once the President announces his decision from the short list, the process moves to the Senate. The Senate Judiciary Committee interviews the nominee at length, then votes to approve or disapprove the nomination. This is serious business for a President. If his nominee is rejected, it sends out messages of poor approval process in the White House and poor judgment by the President. George W Bush nominated Harriet Miers. She was the Bush family lawyer. She withdrew from the process when politicians and lawyers alike decried the choice, further damaging Bush’s already tarnished reputation.

Once the Judicial Committee approves the nomination, it goes to the Senate for a straight up and down vote, i.e. a simple majority is all that is needed to confirm the choice. In the event of a tied vote in the Senate, the Vice-President has the casting vote.

Kavanaugh’s nomination was at risk of being derailed by the claims of college professor Dr Christine Blasey Ford. In a televised hearing, she gave a lengthy statement and was dignified, and to my mind credible, under cross examination. Subsequently, the President waded in to help his beleaguered nominee. In a rally in Mississippi, a Trump stronghold, he posed some questions: “How did she get to the house? She doesn’t remember. How did she get home? She doesn’t remember. Where was the place? She doesn’t remember.” All these questions were fair until you listen to the mockery and scorn in Trump’s voice. But, unlike the UK Prime Minister, a President can wade into the argument, undignified as it may be. Sub-judice rules would not operate in America in any event as the Senate is not a court of law.

Trump has been savvy. By supporting the beleaguered Kavanaugh, he energized the Republican base in seats of the eight Senate elections which are Republican held. If Republicans continue to hold their Senate majority, it will be two years more before the Democrats can challenge court appointment. In that time, how many more Supreme Court vacancies will there be?

Now Kavanaugh is nominated, is that the end? Not necessarily. These days, anything can happen, especially if the Democrats win majorities in both Houses of Congress in next month’s mid-term elections. A Democratic held Congress could impeach the new justice if new evidence is found to prove he lied before the Senate. However, the only impeachment precedent for a Supreme Court justice was that of Samuel Chase in 1804 and he was acquitted. As I have often said, impeachment is political, not legal.

Another potential move would require a Democrat in the White House, as well as Democrats holding majorities in both Houses of Congress. The numbers of Supreme Court judges could be increased. Congress has this right. The Constitution does not specify the numbers of Supreme Court justices. The move was tried by FDR in 1937. The “Court Packing Plan,” as it was known, failed because both Houses of Congress did not like the chief executive interfering with the judicial branch. But times have changed and I would not put it past the Democrats to try.

In the Kavanaugh fiasco, SCOTUS, and by extension the American people, is the biggest loser. The events of the past two years, especially the last month, put the court into serious disrepute. When a former Supreme Court justice and more than one hundred college law professors all call for the nomination to be withdrawn and are ignored, one has to wonder if the Senate Republicans are not only deaf but dumb.