Among the long list of items that many opponents of President-elect Donald Trump are concerned about is the power he will have to help shape the Supreme Court. Before looking ahead, however, let’s take a look at the most recent past.
It’s atrocious that the Senate refused to even consider Merrick Garland. There was an obligation to hold hearings on the nomination. Instead, Senators chose not to do so. They do not have an obligation to approve the nominee, but they must consider him or her. By all accounts, Judge Garland is intelligent, has a strong legal mind and is relatively moderate in all of his prior opinions. I find it appalling that the Senate has chosen to play politics with the highest court in the land. The Court continues to function one Justice down and this aggravates me.
As for the upcoming change in administrations, I doubt very much will change with the strategies of previous Presidents and Congressional leaders who make every effort to appoint justices whose philosophies align strictly with their own. I don’t believe that there should be a litmus test (either way) for justices. Just as I do not believe in one issue politics, a one issue judge also presents a problem. The standards applied should concentrate more on a candidate’s overall intelligence and integrity. I realize it may be naive, but I believe that it’s inappropriate to question nominees about specific issues. Judges are supposed to be unbiased, being required to consider each matter on the facts specific to that individual case. All cases are different, so asking for specifics is unwarranted, since factors will change from case to case.
In addition, Supreme Court Justices are given a lifetime appointment which removes the political check and allows them to evolve, change and unveil, without fear of reprisal, their true beliefs. The lifetime term is another reason that it’s critically important that the best person for the job be appointed. It’s because of the permanency of the position that the two sides have dug in their heels deeper and deeper in the continuous attempt to make sure that those who don the robes parrot their philosophies.
Having said that, history has shown that no matter what the litmus test, surprises can and do occur. Republican Presidents appointed John Paul Stevens, Harry Blackmun, Sandra Day O’Connor, Earl Warren, William Brennan and David Souter (who was infamously referred to as a “home run” for Conservatives by John Sununu) and none of these justices carried the torch as Republicans had hoped. On the other side, Byron White and Felix Frankfurter surprised Liberals, including the Democratic presidents who appointed them, by turning much more conservative once on the bench.
In the end, Justices are human and therefore both unpredictable and capable of free, independent thought. The politics that have been
played with appointments to the Court ignore this fact and seek to paint all nominees and prospective nominees into a corner based on
what they may need to say in order to gain favor. Sadly, neither side is likely to abandon this strategy any time soon.