How SCOTUS Nominations Became All-Out WarBreaking News
tags: Supreme Court, SCOTUS, partisanship, Amy Coney Barrett
Robert L. Tsai is professor of law at American University and the author of Practical Equality: Forging Justice in a Divided Nation. Follow him on Twitter @robertltsai.
Almost no event brings Washington to a halt like a Supreme Court nomination. This week, Mitch McConnell and the president are ignoring every other priority in Washington – including a much-needed trillion-dollar relief package – in the interest of quickly confirming Amy Coney Barrett, whose questioning began today. Back in 2016, McConnell did the opposite, blocking President Barack Obama’s court nomination because it happened to fall in an election year.
The Democrats, appalled by the Republicans’ naked exercise of power, are considering their own responses, including new Supreme Court term limits and altering the size of the nation’s highest court to stuff it with progressives.
How did we get to this point, where the nomination of a single judge can eclipse all other national governing priorities – and both parties approach these moments as partisan power plays rather than what’s in the best interests of the country?
Much attention has been given to degrading norms of civility and abuse of procedure in the Senate, and it’s true these factors have played a role, but they are symptoms rather than the disease itself.
The real problem lies with the way both parties have learned to weaponize the Supreme Court to lock in their own policy preferences and to hang on to partisan influence—a story that goes back before McConnell’s rushed hearings, before the Republicans in the Senate blocked Merrick Garland, and long before Democrats in the Senate blocked Robert Bork.
And, although Americans don’t like to think about it this way, the root of the difficulty lies with the Constitution itself – whose authors failed to anticipate that parties would eventually come to dominate the system the way they do, and to depend on ideologically friendly judges more than the support of voters. As Amy Coney Barrett sits in a Senate hearing room this week, it’s also the Constitution itself that is on trial—and showing its cracks.
There’s no provision anywhere in the Constitution to prevent total partisan takeovers of one or more of the branches of government. The Framers wanted to build an effective national government while creating institutional roadblocks to stymie the excesses of democracy, but their theory of tyranny was simplistic. They worried that one faction could control more than one branch of government, and their design choice for dealing with that problem was fairly tepid: separate functions, harness self-interest to counteract self-interest, and hope for the best. The idea of ideological fairness, or partisan balance, that seems to motivate many Americans today wasn’t part of the Framers’ thinking. This was because partisan dysfunction wasn’t a problem they had thought through carefully.
If it had been, they could have established explicit rules about the makeup of the Court, say, by limiting the number of justices any particular president could appoint, by establishing term limits, or by lodging the selection power in some non-partisan body. In fact, the Framers thought the biggest risk to liberty was the Congress, and couldn’t imagine that the judiciary would ever grow out of its role as “the least dangerous branch.” As a result, they said very little about what they expected judges to do beyond construe a written constitution and apply statutes.
Their major blind spot was not anticipating the problems created by political parties. Early parties were not national in nature and didn’t seek to police ideological discipline to the same degree as modern parties. A politics driven by national parties created fresh problems because every organization has an imperative; a party seeks to seize control of existing levers of power and impose its worldviews on the rest of the country.
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