The Political Supreme Court
There was a time when nominations were fairly straight forward. If the nominee was in good standing, intelligent and didn't have any serious ethical issues, then the Senate would confirm. That changed when the word 'Bork' became a verb and the Senate decided that the philosophy of the nominee was of prime importance. A few short years later, Senator Biden warned the first President Bush to not even bother to put forth a nominee if an opening should happen during the political run up to an election.
During the W Bush administration, the Democratic leadership in the Senate brought judicial confirmations to a crawl. The well qualified nominee, Miguel Estrada, was side-lined in part because he is a Latino, and liberal interest groups were afraid that he would be an attractive future Supreme Court nominee. In 2007, more than a year before the Presidential election, Senator Schumer openly said that no more nominees from President Bush should be confirmed. This, of course, was after Senate Democrats, attempted to filibuster a Supreme Court nominee.
In order to swallow the current arguments being made, we are asked to believe that in a hypothetical situation where, say, Justice Ginsberg had suddenly died in February of 2008, this same group of Senators would have allowed a new nominee to be processed and confirmed. Does anyone believe this? Please!
'Well, two wrongs don't make a right', is now the refrain. This is interesting because most of the people that are saying that, won't actually tell you that the past actions of those Democratic Senators were wrong. But tell you what, if those same Senators want to stand up and explain why they should not have rejected past nominees because of a difference of philosophy, we should all listen. Otherwise, the most honest presumption is that they simply want the rules to be one way when it favors them, and a different way when it doesn't.
The key question at hand is simply this: should a Senator vote to confirm a nominee that disagrees with them on matters like abortion, gun rights and free speech? Or should Democratic Senators only vote to confirm liberal justices while Republicans only confirm conservatives? Those are the two basic choices. Either the process continues to be political at its heart or we somehow go back to idea of voting for all qualified nominees. (Please note, if you only think that the other side should bend, then you don't understand how a democracy is supposed to work.)
What would our Minnesota Senators decide? Would Klobuchar and Franken go the qualification route or would they keep it political? Under what circumstances would they vote for a nominee put forward by a Republican President? And what would DFL voters say if they confirmed someone like Roberts or Alito?
When President Obama, then a Senator, spoke about his objections to Justice Alito, he said:
I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record.Using those same qualifications, we're stuck in the situation where Justices will largely be acceptable or not based on the political make-up of the Senate. We currently have a Republican majority, and that means a more conservative nominee. The chances that President Obama will put one forth seems very unlikely.
This seat won't be filled until after the election. And that would be just as true if the parties in charge of the various branches were reversed.