This week’s blog was inspired by a newspaper headline: “Trump Appoints All Conservative Judges.” The headline saddened me, not because I prefer liberal judges to conservative judges, but because the very essence of an honest judicial system is one in which, at least in the courtroom, the law is supposed to take precedence over political partisanship.
Don’t get me wrong. Both sides do it. In fact, my first recollection of the phrase “court-packing” came during a class in American history. Back in 1937, President Franklin Roosevelt announced a plan to expand the size of the Supreme Court from 9 to 15 members. His rather specious rationale was that 15 would represent a more “efficient” number. But almost everyone at the time understood that Roosevelt was frustrated by Supreme Court decisions that seemed to block his New Deal programs by declaring key features of newly enacted federal statutes unconstitutional. If there were five anti-New Deal justices on the court, then those five represented a majority of a nine-member court; so, by adding six pro-New Deal justices, the President could ensure that the new court would be less obstructive. Or at least that was the cynical view of those who opposed the “court-packing” scheme.
Perhaps politicians on both sides of the political spectrum should be forgiven for acting in ways that are so predictable. But when it comes to the appointment of judges, we Spirited Reasoners need to insist on a higher standard. (Don’t worry. I’m a realist. I’m not holding my breath.)
It was for good reason that our Founding Fathers added some checks and balances to the court appointment process. Presidents are not free to appoint judges and justices without Senate approval. So during years when the President and the majority of the Senate come from different political parties, then the checks and balances ought to work just fine. Presidents coming from a party different from that of the Senate majority would simply negotiate with the Senate leadership until a satisfactory compromise appointee could be determined. Sounds like a perfect plan for ensuring fair-minded judges, right? Maybe so. But things haven’t worked out so smoothly. Here’s why.
In recent years–say the past twenty years or so–the Senate has refused to confirm even the most outstanding, fair-minded appointments whenever the President hails from the opposite party. In other words, the Senate has turned what was supposed to be a Constitutional “check” into an outright barricade. “We can’t hand this President a victory! That would help the President at the next election. So we need to block everything this President tries to do!” Then, when the time finally comes when both the Senate and the President happen to be from the same party, the floodgate opens (because there are now so many vacancies in the judiciary) and almost any appointee gets confirmed automatically, just to make sure the judicial seats are filled with friendly partisans. So instead of having a judiciary filled with judges who were vetted carefully by leaders from both parties, we end up with a judiciary composed of individuals who were appointed precisely because they were biased in one direction or another.
Is there a better check than the one contained in the Constitution? I wish I could dream one up. Unfortunately, every proposal I have considered suffers from the same flaw: whoever the people are who ultimately make the decision about judicial appointments, those people will be just as subject to the evils of political partisanship as are the current members of the United States Senate. To put the matter another way, no matter how we fashion a screening committee whose purpose it would be to select and/or confirm judicial appointments, that screening committee would include individuals who themselves would need to be selected and/or appointed by someone. And if we elected them via the ballot box, then we can rest assured that the election would be tainted with all the partisan, negative campaigning we have come to know and love.
I believe there may be only one solution that stands a chance of fixing this problem. That is for the ranks of Spirited Reasoners to grow to the point where our voices can no longer be ignored by politicians on both sides of the aisle. Then, when we insist that judges need to be appointed based upon their competent, even-handed, devotion to the law, our political leaders will be more likely to pause–if only for a moment–to consider the possibility that the appointment of a fair-minded judiciary might be an issue that carries weight at the ballot box.
Am I smoking something? I don’t think so. I think the times, they are a changin’.