Monday, February 22, 2016

Politics and the Supreme Court

By Professor Eric Miller

Prof. Miller is guest blogging on Prawfsblawg, where this post originally appeared.

I had thought of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

But put that to one side. I'm also of the opinion that if a liberal justice had died while George W. Bush was in the last year of his presidency, liberals would have strategized to hold up his ability to nominate a successor. It is the President's duty to nominate a successor; it is the Senate's job to do with that what it will. The Constitution says no more than "advise and consent," and the idea that the Senate would be acting against the text of the Constitution in withholding an appointment seems to me to read more into the Constitution than is there. The point of a self-checking tripartite government is precisely to engage in a power-struggle to see who can make their point of view prevail. Odds are, it will be the Senate.

Of course, that process should be—in an ideal world—one that is guided by moral principles. I am not a person who believes in the realpolitik or "dirty hands" model of politics, in which there is a separate sphere of morality that operates in the political domain and that holds that the ends justify the means in promoting the interests of one's faction. That, famously, was Machiavelli's position, and Machiavelli was wrong. Nonetheless, in a pluralistic world, there is room for disagreement; and there is certainly a reasonable position that says that half a term without a justice will not ring in the end of the world. Of course, if the President nominates reasonable candidates, and the Senate fails to nominate them, then the Senate will be acting unreasonably and perhaps immorally. Unfortunately, it is within the Senate's power to act unreasonably and immorally (one might think that, on certain topics at least, that is its default position).

There are, however, a couple of fallacious arguments out there. The first is that there is some tradition that authorizes such conduct. There is no tradition, because the situation is incredibly rare. I clerked for two judges who were Carter lame-duck appointees. So certainly the tradition does not exist for lower-court judges. And there is simply not enough of a sample size for there to be a tradition at the Supreme Court level.

There is also no Thurmond Rule worth adhering to. The name of the rule gives it away.

Finally, the idea that Justice Scalia would have wanted a conservative (Judge Easterbrook, some have said) as his successor is an interesting fact, but somewhat irrelevant. I'm pretty sure Thurgood Marshall's preferences weren't honored; and there is certainly no tradition of a justice nominating her successor.

Which brings us back to politics. At some point, politics is about power. It is what makes it a specialized branch of morality. And the current Senate has all the power. It's arguments for exercising that power should be moral ones, not some set of made up rules to bamboozle us into thinking that they are just following precedent. Some said at election time that the President should have put more effort into ensuring a Democratic Senate; he is now reaping that whirlwind. As are we all.

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