Did you watch the Senate Judiciary Committee hearings on the nomination of Elena Kagan to be the newest Supreme Court justice? If you did, you may well have experienced déjà vu.
About the only thing that changes in these hearing is the nominee. The questions are all eerily familiar, as are most of the faces on the committee, which do not change a lot. Senators ask lots of probing questions that the nominee will tend to dodge. Most of them will be about controversial issues like gun control and abortion. The president’s party will generally throw softballs and be effusive with their praise for the nominee. The nominee will dodge most questions saying of course they cannot say how they will rule on hypothetical future cases. They will say that they will weigh the issues that come before them fair and impartially. Then, the Senators will generally vote the way their party leaders want them to vote because they are not jurists, they are politicians. This time around, since every Republican senator is scared that a vote for Kagan will inflame the Tea Party, only one or two Republicans will be brave enough to break ranks. The only real question is whether there is something about the nominee controversial enough for the opposition to attempt a filibuster.
The president and his staff are painfully aware of all this, which is why finding the right nominee is important. Diane Wood, for example, was probably crossed off because she was just a tad too liberal to escape a Republican filibuster. Kagan though was unusual because she had never been a judge. Her lack of a record was something of an asset. Senators were left to fume about minor actions she took while dean of the Harvard Law School. With Democrats in the majority and little in Kagan’s record to get bent out of shape over, Kagan seems likely to be confirmed by the Senate in about a month. But that’s okay. Obama was replacing a liberal justice with another liberal justice. Overall, the balance of power on the court was unlikely to change, with conservatives on the court tending to win most decisions. Expect a real brouhaha if a conservative justice retires and we have a liberal president, or visa versa.
What really annoys me is the elaborate pretense from both senators and the nominee that they will be impartial. What else is the nominee going to say, really? If a nominee were honest, they would admit that virtually all of the Supreme Court’s decisions are political. Senators claim they want impartiality when it is clear they really want a judge that will rule in a partisan matter aligned with their political ideology. When Chief Justice Roberts underwent his confirmation hearings, he went so far as to say that he saw the role of the justice to look at the law and the particulars of the case and then rule whether the case amounted to a ball or a strike. He seemed to be implying that any case could be rendered as either black or white.
As if it is ever that simple at the level of cases the Supreme Court deals with. If a case were easy to decide, it would not have gone through district and appellate courts first, nor would the Supreme Court have bothered to even hear the case. Any case the court agrees to take is going to be inherently squishy and political in nature. While everyone seems to understand this truth, no one will acknowledge it.
The reason you know I speak the truth is that everyone is deeply concerned about the nominee’s record of dealing with controversial or squishy cases. Why? Because these cases help disclose their tendency to apply their political ideology to actual cases. In Kagan’s case, along with many other nominees, their political ideology is hardly a secret. No president is going to nominate someone they think will be at odds with their ideology. Sometimes they don’t get the nominee they expected. Both recently retired justices Stevens and Souter were nominated by Republican presidents, but turned more liberal as they aged. Subsequent nominees have been much more ideological, as presidents worked hard to make sure their ideology rippled through the court long after their terms expired.
The result is a court that now renders a lot of near split decisions, generally on the most controversial political cases. Particularly with controversial cases, it’s not hard to figure out how justices will rule. While the rationale will differ, they will generally line up along their political ideology. Justice Kennedy is usually the only swing vote, and lately he has been trending more conservative. He may be the only impartial justice on the court.
Of course, justices will be influenced at least to some extent based on their feelings and the way they were raised. When there is ambiguity and you have to make a decision, where else will you turn? At the Supreme Court’s level, where cases are inherently squishy, of course those factors are going to weigh more heavily than they will at a state or county court. In the lower courts, the judge is often required to interpret the law a certain way. At the level of the Supreme Court, as much as some on the court would say otherwise, they make the law by deciding the case.
The Second Amendment, for example, was genuinely ambiguous. Did it mean that everyone has a right to own a gun, or did it mean that people had the right to own a gun only because they might need to help support a militia someday? The Supreme Court in a number of recent rulings seems to be saying that the part of the amendment dealing with militias is interesting background history but irrelevant. Everyone has the right to own a gun. The court parsed the arguments and history of the Second Amendment and there was evidence of original intent in both directions. The court, based on its ideological leanings, made the political decision to interpret the amendment (yes) liberally. It could have said it was so ambiguous that Congress needed to pass a clarifying law. It did not.
Often the Supreme Court will, by the narrowest of margins, overturn a ruling by an appeals court that was also decided on the narrowest of margins. That so many different “impartial” judges can see these murky cases in so many different ways and come to so many different conclusions just goes to prove that Robert’s “balls and strikes” argument is hollow.
Everyone understands the reality, which is why the president is so careful not just with Supreme Court picks but also with picks for district and appellate courts. The more judges he can get confirmed that align with his ideology, the better the odds are that over time these jurists will issue rulings that also align with his ideology. This is also why senators, through the use of dubious tactics like secret holds, try to bottle up nominees for lower court judges that are the least bit controversial.
At the federal level, all but the lowest courts decide cases that are inherently political. That’s the way it has been since the birth of our republic and the way it will be while our country exists.
It would be nice if we would stop pretending it is otherwise.