The judicial wars threaten to engulf us in ceaseless cycles of partisan warfare and recriminations. Herewith, two modest (read: unlikely) proposals to try to mitigate the damage, one involving the chief justice, the other the president.
To begin with, though, a stipulation and a sense of the stakes involved.
The stipulation is that no one in this Almost Thirty Years’ War — Robert Bork was nominated in 1987 — comes with clean hands. The situational ethics of the capital are never more evident than when it comes to confirmation battles.
Republicans wave around quotes from Chuck Schumer and Joe Biden on stalling Republican Supreme Court nominees. Democrats respond with reams of Mitch McConnell pronouncements on the importance of deferring to presidential prerogative. Would Democrats eagerly usher through a high-court nominee in the seventh year of a Republican presidency?
Of course not, although Democrats might be less blatant about trumpeting their plans for blockage, and Senate Republicans’ stance — don’t even bother, Mr. President — takes things a significant and appalling notch further. The latest news, that Republicans will not hold hearings or even meet with a nominee, regardless of qualifications, is unprecedented in its disrespect for the constitutional process.
As to the stakes: Failing to act on a nominee would not affect just the current court term. It would, for all practical purposes, leave the court at less than full strength during the following term as well.
The new president will not be sworn in until Jan. 20, 2017. Even if the vacancy is at the top of his or her agenda, a nomination could not practicably be forthcoming until the following month. And even assuming a normally functioning Senate, the new justice would be lucky to be in place for the last arguments of the term, in April. (Elena Kagan’s confirmation proceedings took 87 days; Sonia Sotomayor’s, 66; Samuel Alito’s, 82.)
Meantime, the absence of a ninth justice for two terms is no minor impediment, despite what Republicans say. Last term, 19 cases — 26 percent of the court’s docket — were decided by a vote of 5 to 4. The previous year’s number was 10, or 14 percent of the caseload. The year before, 23 cases, or 29 percent. These are some of the most important on the court’s docket.
Which brings me to Chief Justice John G. Roberts Jr. Sure, he won’t be inclined to insert himself into this political mess. Still, he should. It would not only be appropriate for Roberts to speak out about the harm posed by a lengthy and contested vacancy, it would be in line with his previous statements on the problem of vacancies in lower courts and the politicization of nominations.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” Roberts said this month, before Justice Antonin Scalia’s death. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process. And that’s just not how — we don’t work as Democrats or Republicans. And I think it’s a very unfortunate perception that the public might get from the confirmation process.”
What perception, Mr. Chief Justice, will members of the public have watching a vacancy languish for months because one party doesn’t want to let a president of the opposing party fill the spot?
Speaking of the president, there’s a way — albeit even less likely — for Barack Obama to reduce the political temperature. He could take the advice proffered by a lawyer who would later become his White House counsel, Robert F. Bauer, and ask that his nominee pledge to serve a limited term.
Term limits for justices are a good idea that will never happen because of the obstacles to amending the Constitution (and serious constitutional impediments to imposing such limits legislatively). Bauer’s intriguing idea is to achieve these limits through practice rather than dictate.
“No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost 150 years after Washington,” Bauer wrote in 2005, when Roberts’s nomination was pending. Perhaps the offer of a nominee to serve a reasonable term of years — Bauer tossed out the notion of 15, quoting a 1983 memo by Roberts himself — would dislodge the gridlock and pave the way for a more orderly, less acrimonious future.
A president willingly ceding power and influence is as antithetical to the politician’s instinct as a justice thrusting himself into a raging political battle is to the judicial temperament. But something must be done. Crazy times call for crazy suggestions.