A bipartisan Senate confirmation process for Supreme Court nominees was only possible when politicians were idealistic enough to view the court as being above politics, and trust it to remain so

In her appearance yesterday at GW Law School, Supreme Court Associate Justice Ruth Bader Ginsburg was asked to reflect on what had changed since she was nominated to the court by President Bill Clinton in 1993, and her thoughts on the new landscape as Trump nominee Brett Kavanaugh awaits confirmation by the Senate.

In her response, Justice Ginsburg lamented the sharp decline (if not extinction) of bipartisan cooperation and mutual trust between Republicans and Democrats, conservatives and progressives. Ginsburg was confirmed by a vote of 96-3 when she was up for nomination, a tally that would be unheard of today, when political polarization often makes us think of each other more as enemies than fellow citizens. Still, Ginsburg expressed a desire to roll the clock back.

From the National Review:

In a Wednesday appearance at George Washington University Law School, Justice Ruth Bader Ginsburg lamented the degree to which partisanship has infected the judicial-confirmation process, calling Supreme Court nominee Brett Kavanuagh’s recent confirmation hearing a “highly partisan show.”

Contrasting Kavanaugh’s hearings last week with her own, which occurred in 1993, Ginsburg called the partisan grandstanding of Democrats “wrong” and expressed a desire to return a spirit of collegiality to the process.

“The way it was was right. The way it is is wrong,” Ginsburg said to applause. “The atmosphere in ’93 was truly bipartisan. The vote on my confirmation was 96 to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board. . . . That’s the way it should be, instead of what it’s become, which is a highly partisan show. The Republicans move in lock step, so do the Democrats. I wish I could wave a magic wand and have it go back to the way it was.”

This, together with virtually everything else the Justice said, was met with wild and fervent applause in the hall, and enthusiastic agreement online after the fact. And Ginsburg is certainly right – the American system of government can not work as it should when the Supreme Court becomes simply an extension of Congress, where partisan justices nakedly vote to advance a party political agenda and the Constitution is treated as little more than rhetorical clothing for their decisions.

Justice Ginsburg’s confirmation process reminds us that even as recently as 1993, the Senate was able to do the right thing – to confirm a qualified candidate for a position on the highest court in the land on the basis of her known competence and record, even though at least half of the senators voting to confirm her probably disagreed both with her politics and her judicial philosophy. Back then, senators still understood and acknowledged that the test for a Supreme Court candidate was not whether one agreed with their judicial philosophy, but rather whether or not the nominee’s philosophy and approach to the law was derived and applied in good faith. In Ginsburg’s case there was no doubt, and so many Republicans lined up to vote for a card-carrying ACLU member and avowed friend of abortion rights.

Fast-forward to 2018, and how different things look. Desperate to prevent outgoing President Barack Obama from making a third appointment to the court, Republicans created out of thin air a new pseudo-rule that presidents in their last year of office must refrain from making appointments and wait instead for their successor to take office. Thus, Senate Majority Leader Mitch McConnell prevented the senate from even considering the nomination of Obama nominee Merrick Garland, an eminently qualified candidate, allowing the newly-elected President Trump to nominate Justice Neil Gorsuch to the “stolen” seat.

Now, with President Trump in the White House in the prime (or perhaps nadir) of his first term, many Democrats are inventing another pseudo-rule that presidents whose political campaigns are under investigation for potential corruption and coordination with a foreign power  should not be allowed to fill an opening on the court.

Of course, even if both sides did not have their respective arguments to fall back on, most senators within each party would not vote to confirm a candidate seen as sympathetic to the other side, no matter how well qualified. The entire process has become a performance spectacle, where senators with absolutely no intention of voting for a nominee under any circumstance still wail and rend their garments about not being provided with the documents they have already admitted will not influence their negative decision.

Jonathan Turley (full disclosure: my current Torts professor) explains at greater length the problem with theatrics superseding substance:

[T]he Kavanaugh hearings left a troubling and damaging precedent for a process that already lacked substantive content. I have been a critic for years of the modern confirmation hearing, which is largely about senators rather than nominees. The hearings drained what little substance remained in the process. The unilateral denial of documents and theatrics of the opposition left the hearings as little more than a stunt by both parties.

In the absence of sincerity, everybody is now playing a role rather than speaking honestly about their motivations. Judicial nominees play a role (usually that of someone who has taken a vow of silence), senators play a role (amateur dramatics wannabes, mostly) and we all play a role, pretending that we want bipartisanship when really we would be quite happy to stuff the court full of likeminded souls and call it a day.

 

All of which led me to question why everybody applauded Justice Ginsburg as she called for a return to the bipartisanship of the early 1990s. The justice is absolutely right, but many of those applauding – particularly on the Left – seem not to have thought through the consequences of what it is that they are endorsing.

A return to 1990s, Ginsburg-era bipartisanship would see Trump nominee Brett Kavanaugh confirmed by a margin nearly as large as the Notorious RBG’s 96-3 blowout. Why? Because while probably far from the greatest American legal mind alive today, Kavanaugh is eminently qualified for the role. His former classmates and professors at Yale Law School say so. His former law clerks say so. The American Bar Association, which is invited to rate all nominees and testify as to their suitability, rates him as highly qualified.

The only issue would therefore be his conservative politics, past service with the Bush administration and the seeming antipathy of his judicial philosophy to the reasoning behind Roe v. Wade. And by that standard, Democrats would have to swallow their bile and give the man their support. That’s what Republicans did when they voted for Justice Ginsburg, and unless their crocodile tears for the age of bipartisanship are a complete lie, then that’s what Democrats would have to do, in the spirit of consistency, for Brett Kavanaugh.

Some might argue that this is different, that Kavanaugh would be filling the “swing seat” recently occupied by retired Justice Anthony Kennedy and thus tilting the court in a more conservative direction, while Justice Ginsburg’s 1993 appointment merely preserved the pre-existing balance. But there was no asterisk by the word “bipartisan” when Justice Ginsburg uttered it and everybody cheered. She did not say “bipartisanship, except when the ideological alignment of the court is in question, at which point everyone should vote in as nakedly partisan a way as they see fit”. She called for a return to senate bipartisanship, period.

And true bipartisanship with regard to the Supreme Court means accepting the somewhat random nature of the court’s changing shape – that the ideological or philosophical leaning of the court will fluctuate depending on when individual justices retire and which party happens to hold the White House when they do so. True bipartisanship would entail Democrats voting for Brett Kavanaugh and more Republicans voting for the likes of Sonia Sotomayor (68-31) or Elena Kagan (63-37) without complaint, based on their status as qualified, competent candidates.

(We should avoid becoming misty-eyed about the past, though – Justice Clarence Thomas was confirmed to the Supreme Court only after highly contentious hearings and a wafer-thin, decidedly partisan 52-48 vote).

If giving this bipartisan benefit of the doubt now seems impossible – if the idea of vesting many of our fundamental rights and privileges on nine unelected judges who may sometimes lean conservative – then rather than seeking to pack the court with our own ideological soulmates and protesting when the other side does the same, we should return to a system where the rights we consider to be fundamental are put out of daily political reach and enshrined in the Constitution, rather than being fortuitously discovered by “activist” courts or cruelly struck down by “reactionary” ones.

Democrats no doubt argue that in the case of this nomination, the stakes are so high as to justify any lengths of procedural opposition. But Republicans say the same thing when Democrats are in power. That’s what happens when we see each other not as fellow citizens with legitimate political differences but dangerous enemies who pose emotional and physical harm to one another.

I have only been a law student for a month, but even now I can see that the Common Law (and case law in particular), while an remarkable, complex and ever-changing creation, is the very last place you want to vest your most fundamental freedoms. Why? Because fundamental rights which only exist as judicial opinions are at daily risk of being reshaped, expanded, curtailed or reinterpreted by courts across the land. That’s why the right to free speech is properly enshrined in the First Amendment to the Constitution, a safe place where it is much harder to “get at it”, rather than existing as a few throwaway lines in Smith v. Smith, where today’s prevailing attitudes could alter its meaning in about the same subtle way that an avalanche reconfigures a mountain slope.

If we were being honest and sincere when we applauded Justice Ruth Bader Ginsburg’s call for a return to bipartisanship last night, we need to hold ourselves to that higher standard at all times, not simply mourn its loss when the other side holds the reins of power. We need to do the harder work of engaging with our fellow citizens and convincing them that our ideas are superior, building enough of a national consensus that we can prevail with legislative (and where necessary, Constitutional) solutions rather than seeking to take judicial shortcuts around public opinion or political impasse.

Justice Ginsburg talked about “wav[ing] a magic wand” to return to the days of bipartisanship and a less politicized judiciary. But there is no magic solution, no one action that can be taken. The legitimacy of our legal system depends on the behavior of those who run it, supervise it and avail themselves of it. We could return to the days of Justice Ginsburg’s confirmation any time we want, but with a vacant seat on the court today, that would mean Democrats paying a price that they are unwilling to pay. And, to be fair, why should they be expected to pay that political price when the Republicans have proven to be such untrustworthy partners?

So we either take the leap of trust together, or things continue on as they are, becoming progressively worse as every judicial nomination and every Supreme Court decision becomes an existential battle. I fear that despite these rare, commendable calls for bipartisanship, we all know which way we are headed.

 

UPDATE – 14 September

In a commendable display of legal objectivity, prominent lawyer Lisa Blatt – who refers to herself as a “liberal feminist” – writes for Politico Magazine, urging Democrats to vote to confirm Judge Kavanaugh despite their ideological disagreement with him.

Money quote:

I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.

It’s easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications. Just as a Democratic nominee with similar credentials and mainstream legal views deserves to be confirmed, so too does Kavanaugh—not because he will come out the way I want in each case or even most cases, but because he will do the job with dignity, intelligence, empathy and integrity.

If we had more people who think like Lisa Blatt serving in the US senate – or indeed within the judiciary – then we might not be languishing in the bitter, distrustful, polarized stalemate in which we find ourselves.

 

UPDATE 2 – 14 September

Trust the extremists over at Above the Law to take an entirely contrary view.

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