The Supreme Court confirmation process is crippled and it can't be healed

The upcoming battle over who will fill the currently vacant seat on the United States Supreme Court is going to dominate the headlines for some time to come. If the #NoHearingsNoVotes forces carry the day it will drag on through the next election, likely not being resolved until some horizon more than a year from now. If the seat is somehow filled before the next NFL season kicks off, the GOP will be sliding even further into an internecine meltdown just as our eventual candidate prepares to go to the polls in an effort to take the White House back from the Democrats. This is not a pretty picture to put it mildly.

Was it avoidable? Sadly, the answer is no. The current situation actually has little or nothing to do with Barack Obama, Antonin Scalia, Mitch McConnell, Chuck Schumer or anyone else presently on stage. Miguel Estrada and Benjamin Wittes have an excellent op-ed at the Washington Post this week which echoes the same sense of to heck with it that I’m hearing from folks on both sides of the aisle. The nomination and confirmation procedure has been hopelessly broken for more than two decades, and while we may still eventually keep all nine seats on the bench filled, it’s never going to be a nationally productive effort.

As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so…

Republicans and Democrats put the blame on the other for the complete abandonment of rules and norms in the judicial confirmation process. Both are being insincere — whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side. Both have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.

Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity.

Long before the sudden and generally unanticipated passing of Antonin Scalia I was penning articles about the sad state of affairs in this process. Mind you, I had no salable solutions to offer then and I’m equally empty handed coming into the discussion today. But that doesn’t mean we need to simply ignore the problem. (I remain hopeful that there are plenty of people out there who are less dim witted than myself sitting on some magical solution.)

The real problem here is that we’ve managed to politic our way out of getting any truly “blind” justices on the highest court who are unafraid of political ramifications in their rulings. The reality of the law (and the Constitution itself, for that matter) is that it is neither conservative nor liberal. It’s simply a body of rules which dictate how the both the government and its citizens must behave in order to maintain the founders’ vision of a free society. When viewed through the dual prisms of the two parties’ political platforms, there are going to be times when you cheer for the result and others where you come away unhappy… at least if the subject matter were being treated to an honest, brutal reading of the rules.

Unfortunately, the Founders (for all their amazing wisdom) were human beings with all the limitations that condition entails and were unable to foresee every possible innovation and evolution to come for three centuries or more. There are gray areas where various readings of the founding documents can be bent into all manner of interesting shapes if you really want the outcome to go your way. We also allow for limits on essentially all of our freedoms, immediately inviting trouble when you have to fight over who gets to set those limits. Factoring in those realities, you can readily find judges who will always, without exception, take either the most liberal or most conservative interpretation of these gray areas when deciding a case. And because of the partisan nature of our system, those are precisely the judges who will find their way into the “binders” of presidents from each party. These same features also render them immediately unacceptable to one party or the other before a single hearing can be held.

Somewhere out there in the hinterlands there are, no doubt, a smattering of judges who hold no ambitions of reaching the highest courts in the nation and who simply apply the rules of the road to their decisions. In doing so, they inevitably tick off both the Republican and Democratic leadership in their town, county or district over a span of years. As a result, they go on the “naughty list” of both parties and are never suggested as candidates to move up the ladder. And that brings us to where we find ourselves today. We’ll eventually seat someone new on the court, but it will be a bloody battle from beginning to end and they will be made into political pincushions and pigeonholed as a “conservative judge” or a “liberal judge” before they hear their first case.


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