Could the refusal of Garland's nomination dangerously politicize the Supreme Court?

Great Debates
1

In another thread, I mentioned that the Senate’s actions potentially politicize the Supreme Court by establishing a dangerous precedent. I’m not naive, I know that basically since the inception of the Supreme Court, it has been politicized to some degree. Hell, it was John Adams creating the Midnight Judges because he wanted the Federalists to have a political refuge that led to John Marshall becoming Chief Justice and ushering in arguably one of the most significant, fruitful eras of Supreme Court history. That said, the Supreme Court was always meant to be somewhat removed from the political world. In Federalist No. 78, Hamilton stated that it was essential for the judiciary to be independent, which is why judges are given lifetime appointments.

In theory, a Supreme Court Justice is supposed to be an objective party that will properly interpret the laws, which is why the President can nominate anyone. Yes, Presidents often go with someone who matches their ideology, but the nominee isn’t beholden by that ideology. In turn, the Senate gets to decide if the President’s nomination is worthy of the position. Now, the Senate wants to choose not to play its part. Imagine if the President decided not to nominate a Justice because he wanted an ultra-liberal and believed he’d have the necessary Senate majority in a couple years? That’s essentially what the Senate is doing. And while it could be argued that the Constitution allows such actions, doing so ignores a tremendous structural issue: the fact that it directly affects the operation of another branch of government. The Supreme Court is a vital part of the government and having an odd number of Justices is quite obviously essential. It’s not the Senate’s role to cripple it.

In my opinion, McConnell’s actions potentially lays the groundwork for the Senate to dramatically politicize Supreme Court nominations. I know they’re arguing that Obama being in his last year justifies their actions, (even though plenty of nominees have been confirmed in their last year of office) but I don’t buy it. They just want to hold on to the Conservative majority they’ve largely benefited from for almost 40 years. So, what if they don’t like the next President’s party affiliation and still refuse to “advise and consent?” What then? Will they just keep on stalling/waiting?

Not to mention they’re constructing a tool the Democrats can use against them when the tables have turned.

So, what do you think? Has the Senate now opened the door for even more politicization of the Supreme Court?

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Even worse, we could see development of a politicized Congress.

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Sadly yes it is getting politicized in a really ugly way. See for instance the history or the Supreme Court of Argentina

This is a case study of a court modeled after the USSC, but disastrously influenced by the politician flavor of the day. The institution completely broke down, and is currently filled with three members. How do you even begin to fix such a broken institution? Whichever president starts filling in vacancies will have undue influence for decades to come. Do you fill them two seats per president until you reach 9 (to keep some semblance of political neutrality)? Is it fair game for the current president to appoint all seats now? Is that a stable configuration such that the next ruling party respects the institution? These are all very difficult question that arise when a country backs itself into an ugly corner. I think Mitch McConnell is playing with fire and he’s too ignorant to know it. I sincerely hope that all these tea party obstructionists get swept out of government this year.

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How the justices are nominated and confirmed has always been a political process, so nothing has changed with this particular vacancy. I can’t think of any off-hand, but I’m sure if we go though all the SCOTUS members over the years we’ll find a few that were indeed just political junkies voting the party line.

More typically, the justices have “come up through the ranks”. The depths of understanding of judicial process from years if not decades of experience bring to bear in our highest court some of our finest minds in terms of the courts’ responsibilities and independence. At least partially, the notion of judges being conservative or liberal is an artifact of our commercial press, a notion that helps sell today’s new treatment for persistent body odor, talk to your doctor right away to see if Gradelphinate is right for you.

There’s no danger with this current status quo, eight justices are perfectly fine for the vast majority of cases that are brought before SCOTUS. A surprisingly large percentage of rulings are heavily one way or the other, so that 7-1 or 2-6 voting still gets the job done. Just these cases don’t make the headlines or nightly news; without any controversy, no one’s interested enough to sit and listen to the commercials.

As far as those cases that are highly contentious, where we could have a 4-4 tie, I would say that we’re asking the wrong people to decide. Courts work best when there’s an actual law being challenged. As an example, let’s look at Same Sex Marriage. These poor nine folks didn’t have a law to work with, nothing to weight the arguments against. In effect, SCOTUS had to create law with their ruling. Horrific that this should even reach the courts at any level, long long after the Congress should have decided the matter.

The danger is an ineffective legislature, unable to write laws. Thus we’re left to the President writing executive orders or SCOTUS making rulings without legal basis. I think Republicans are taking a foolish chance with their stance on this nomination, We the People are sick of this gridlock and the incumbents deserve the blame … throw the bums out !!!

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Politicize the SCOTUS or politicize the nomination process? Or both?

The process has been politicized for a long time. The Republicans are taking it to the next level, but this is hardly the opening of any door. And if they come out of this in the next election unscathed, they’ll probably think they’re doing OK. If not, they may think they’re not doing OK (although if Trump is the nominee, it might be difficult to determine if this maneuver was the cause).

Ultimately it’s We the People who decide how much of this we will stand for. As the saying you goes, in a democracy you get the government you deserve. It sounds trite, but it’s true. Unless politicians get punished at the polls when they screw up, they’re going to keep screwing up.

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Well, politicization in Congress is expected. It always has. The problem is the erosion of tenets like compromise and bi-partisanship. McConnell’s refusal shows the rising prevalence of needless obstructionism and stubborn partisanship.

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14th Amendment-Equal Protection Clause

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The Supreme Court has always been politicized, for the simple fact that one cannot become a justice without political appointment and confirmation. The Court is inextricably tied to politics.

The difference is that the republicans are trying to create a Plutonomy and a government that is dominated by corporations. They are trying to create a society in which the federal government is extremely weak and state governments decide, with the approval of dominant interstate and trans-national corporations, what your rights truly are. The republicans are trying to suppress opposition of the voting left wing through systematic targeting of poor voters, older voters, minority voters, and voters with limited means. They are trying to strip unions, especially public unions, of the power to organize and bargain collectively.

In order to achieve this, the republicans need a court that sanctions decisions like Citizens United so that republican candidates can gain financial advantage over their democratic counterparts. Better yet, if they can get a court that weakens labor laws and challenges the right to bargain collectively, they can effectively end organized labor and take it back to where the movement was in, say, the year 1913. They need a court that sanctions extreme voter ID laws like those in Wisconsin so that moderate progressive states become pro-corporate states, not just now but 10 years from now. They need a court that votes against the federal government’s ability to use tax dollars to provide public health insurance and social security.

The republicans need a court to do the heavy lifting because they know their ideas aren’t popular with the electorate. They’re the party of strict constitutionalism because strict constitutionalism or originalism represents the older, elitist version of the constitution that was suspicious of democratic influence. They’ve basically been using filibusters, Gerrymandering, legalized vote suppression, obstruction, impeachment, threats of impeachment, congressional hearings, investigations that go nowhere, and since around 2005, a friendlier Supreme Court to achieve their aim. Oh and keeping foreigners out. Basically everything other than trying to market their ideas to the public at large. They’ve gotten just enough political support from angry white voters and won just enough elections to keep this scheme going. The GOP’s afraid that their luck is about to run out so they’re determined to fight like hell to keep the Court, at best, deadlocked. And hope for the best in November. That’s why they’re so terrified of Trump. He threatens to deny them the final vote on the supreme court; they know that a UNIFIED progressive vote (even if it’s ‘just’ for Hillary) would set them back years – perhaps forever when you consider just how the demographics are working against them right now.

That’s why Bernie or Bust voters really, really need to put down their lattes and craft beer, and get their heads out of their asses and see what’s at stake here. It’s not hyperbole to suggest that this election is everything that will matter over the next 10-15 years. At minimum, progressives can deny the republicans control of the Supreme Court and at least stop their forward momentum. But if Trump were to somehow decide to give the GOP the finger and run as a third party, a unified progressive front would potentially break open the dam for real change over this same period of time.

9

I think politicizing the SCOTUS nomination necessarily politicizes SCOTUS in general. I realize that politicization has always been a necessary part of the nomination/confirmation process, but, as you said, the Republicans taking it to the next level. As melodramatic as it may seem, the precedent they’re establishing could be used and contorted in a number of troubling ways. By politicians on both sides of the aisle.

You last paragraph is funny, because I almost stated that the only way the Senate could absolutely be stopped is if they’re voted out. However, and this may be the cynic in me, despite the importance of the Supreme Court, it isn’t usually a prime priority for voters. I would hope that the People would respond to such an extreme action by taking to the polls, but I’m not 100% they would.

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“Democracy is the worst possible form of government, except for all the other forms of government” – Someone Famous

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Whosoever be without sin, let them cast the first stone.

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It’s hard to know exactly what sins you’re referring to, but regardless, I don’t equivocate when I say that whatever sins the Democrats commit, they sin a lot less. It’s not part of their ideology to create a new Gilded Age. Are there some democrats who play the game and pander to special interests like big banks? Yes, but again, doing something because it’s considered necessary in order to remain part of the political equation is different from doing it because it’s the party’s vision for the country’s future.

13

A Republican would disagree. A Republican would mirror your statements. Both Republicans and Democrats are convinced of their own self-righteousness. Both are wrong.

That’s the advantage of being several thousand miles away. :slight_smile:

14

You done been whooshed, amigo!

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The difference is that republicans base their righteousness on religious superstitions and economic theories that promote inequality, which is something that most of humanity would probably reject. So like I said, the Democrats are right.

16

Do all of them? Or only some of them? How do Democrats fare on each count? How many Democrats are Christian, for instance, or Muslim? How many Democrats promote policies that discriminate against, for example, white people?

Physician, heal thyself.

17

Both parties here in the far-off USA have played politics when nominating & confirming Supremes, throughout our history. But my party does not have a powerful far-left wing to compare to the Teabaggers. Now all the Congressional Republicans have decided not to play at all–exhibiting new depths of obstructionism.

No, both sides do not do it to the same extent. We really need more voters to ensure that President Clinton has a more sane Congress to work with.

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I would say that you have a strong left-wing that is backing Sanders, and that this cycle might be the point where they start to truly exercise their power. I agree that true progressives in the Democratic party have been shoved to the corner for many years - whether or not the (perceived) shenanigans of the DNC during the primary cycle drive them to be even louder remains to be seen.

A President Clinton is (IMHO) almost a guarantee that the Tea Party wing will take MORE power in the Republican party, if only to stifle any actions that she might take. Running against Clinton will be the battle cry across the states in the mid-term election cycle.

19

Does anyone else feel the need to have the “Both sides do it” narrative firmly and rapidly shoved back where it came, or can I rest in the knowledge that it’s just this guy making this rather ridiculous claim?

20

The perils of the Internet; not being able to interpret tone/body language. But I’m okay with things going over my head. The whoosh gives my hair a great bed head look, which seems to work for me.