Linda Greenhouse, the long-time Supreme Court watcher of the New York Times, had an excellent op-ed in yesterday’s Times about the increasing politicization of Supreme Court appointments and confirmation. The headline and subhead asked (and answered), “Are We Now Electing Supreme Court Justices? Sure seems like it, from watching the TV ads for and against Brett Kavanaugh.” Read her whole piece here. It’s a great overview of how the most recent developments in vetting and then promoting for ratification, Supreme candidates.
The answer to Greenhouse’s headline question is pretty obviously “yes.” The names of the justices don’t appear on any ballot, ever. And they serve for life. And they wield pretty huge power for unelected officials in a democracy. And, nowadays, a great priority is put on appointing young ones who will serve for decades beyond any political accountability.
In addition, we now have presidents who run for office making not-even-thinly-disguised promises to appoint justices who will rule certain ways on certain matters, the most prominent current matter being the future of Roe v. Wade.
Trump (who used to be pro-choice on abortion, but evolved) made a campaign promise to get rid of Roe, in the most direct way possible, by appointing new justices who would vote to overturn it. I don’t believe there has ever been a presidential candidate who so clearly and candidly promised to use a litmus test on Supreme Court nominations to achieve such a result.
In one of the debates, after Trump had made this promise, Hillary Clinton was asked to respond, and she simply said “I’m pro-choice,” but was more circumspect about promising to use the presidential power of appointment to protect Roe. Her circumspection was a dying vestige of the old pre-Trump norms. According those old norms, a president is allowed to have a position on such a matter, but wannabe Supreme Court justices are not, except to use lawyerly tools to understand what the Constitution might say about it.
Trump is a norms smasher, of course, so he came right out and promised to use his appointment power in a way to change the current abortion law of the land, namely the law according to Roe, so that it probably cannot be changed back, at least for decades.
I suppose the fate of Roe is the most sensational of all such Supreme-nomination-related matters, but there are many others. We’ve been heading down this path for decades. But it wasn’t that long ago that potential justices were not asked nor scrutinized for how they might vote on cases that might come before them.
For some time, presidents have tried to nominate highly qualified justices who shared their general views, in a vague liberal or conservative sense, but not to the point where their votes on specific matters were predictable.
The history of deeply vetting particular justices for how they might vote on particular matters is quite new. There are famous instances (Justices Earl Warren and David Souter are often mentioned in this regard, and the Souter case goes back only to 1990) when the president was surprised by how the appointee turned out. The norms have changed pretty fast since then, but what’s going on now is even newer. Presidents go to formerly unimaginable lengths to guarantee no surprises, especially on the highest profile matters like Roe/abortion.
Traditionalists find the newest norms alarming. I understand why. But I have my own quirky view that goes deeper. I challenge whether the authors of the Constitution intended for a body of unelected justices to have the power to make and unmake laws, in fact a power greater than that of the elected branches to make and unmake them. Marbury v. Madison, the early case in which the court first asserted this authority was a colossal power grab, in my view.
Thomas Jefferson had the same view, protesting against Marbury and later writing that: “[T]he Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
I’m with Jefferson, although I acknowledge that this ship has sailed.
In the matter of Roe v. Wade, it cuts both ways. Although I am personally pro-choice, the idea that something the Constitution can be interpreted by unelected non-legislators as creating a three-trimester analysis of whether and when a woman can make that choice has always struck me as – well as what Jefferson said above about the “mere thing of wax.”
But the latest developments give us a new absurdity. A president, whose job is also not to legislate, can use his appointment power over the Supreme Court to engineer a majority of unelected lifetime appointees, who can legislate matters in or out of the “evolved” Constitution, and put it beyond the power of the actual elected branches to alter. And the law created by the unelected justices is unalterable until enough of them die or retire and are replaced.
I say that nothing remotely like this was intended nor envisioned nor expected when the Constitution was written and ratified. And it’s not healthy in a democracy.