Widespread concern has been expressed about the declining nature of our national debates, with civility, good sense, and semblance of truth being counted as the foremost casualties. No better illustration of the problem exists than that farcical first so-called debate between Donald Trump and Joe Biden. An even greater worry is how decreasing emphasis on civics education has led to depreciation in the value too many citizens attach to the rights and institutions that provide the superstructure of our democracy.
Happily, this piece is not another dreary dissertation on that subject. Every now and again, encouragement shows up in the most surprising of places. Purely by political chance, America has been treated to a well-planned and well-executed clinic on one of our most crucial institutions – the U.S. Supreme Court. The several days of lengthy hearings by the Senate Judiciary Committee were extraordinary, enlightening, and worth watching.
Much of the discussion centered on the central tension in selecting and evaluating judges and justices. There are the constitutional, ethical, and traditional precepts that define the role of judges and the confirmation process. Then there are all the ancillary considerations that come into play defining how individuals and groups want or prefer judges to be. With the sharp divisions in the body politic, judicial nominations to the Supreme Court have become more intensely contested since Robert Bork.
The discussion included the powers, responsibilities, and separations between the executive, legislative, and judicial branches. This sort of publicly accessible tutorial does not happen often.
The Senators collectively performed well above the low expectations of many observers. Even those disliked because of their positions or demeanor or reputation showed intelligence in framing their position, diligence in doing their homework, and skill in playing the policy cards in their hand. They showed depth beyond the common caricatures and stereotyping. Granted, a few wandered off into bizarre soliloquies, but that may be more reflective of the tenor of the times than any indictment of their innate ability.
The obsession with winning for our positions and views has obscured the importance of process and rules. The president has exacerbated this, for he is all about achieving his ends, without apparent regard to the democratic means of decisionmaking. Nevertheless, Trump reached high in nominating Amy Coney Barrett. It was his prerogative to nominate and to do so quickly. His desire to have his nominee placed on the court in front of big decisions is not a departure from his predecessors.
The key finding of the hearings? Amy Coney Barrett is an outstanding nominee. Her character and credentials are impeccable. She comes without notable defect, save for those who consider being forthrightly and unashamedly conservative equivalent to original sin. The Democrats put out every suspicion about her nomination and tested the prevailing fears about how she might rule. The former she could easily rebut; the latter she cannot by canon dispel. But anyone who was expecting to find or paint a nominee lacking a heart or compassion proved in error. Joe Biden’s comment that she did not answer many questions is just political fecklessness. He of all people knows she did precisely what she should do, and would likely privately concede she did it earnestly and adroitly.
Because of the accusations that emerged when Brett Kavanaugh was nominated, those hearings were dominated by arguments over character and conduct rather than pure judicial qualification. This time, what makes a good judge and a worthy justice was the crystal clear focus.
The Supreme Court functions best when it is loaded with intellectual firepower on both sides, as the constant references to Antonin Scalia and Ruth Bader Ginsburg underscored. A fascinating footnote is that the two held polar views on the abortion issue, but neither was fond of the legal reasoning used in forging Roe v. Wade.
Given the stakes involved in the cases the court has agreed to hear this session, it would be political malpractice to leave the seat open for a prolonged period of time. The recent 4-4 split on a Pennsylvania vote-counting case was just a preview of things to come had it been decided to put off a nomination and confirmation for months. Withholding consideration of President Obama’s nomination of Merrick Garland was a lamentable exercise in political mischief. Depriving the court of a qualified nominee now would be equally egregious. Neither national interest nor public faith in jurisprudence would be served by institutionalizing the strained justifications used to ice Garland. If there is a price to paid, voters can exact it on their U.S. Senators. Penalties should not be applied to subsequent qualified court nominees.
As Justices Gorsuch and Kavanaugh have already proved, the notion of an entirely predictable justice is a fiction today, and has always been misplaced. When Dwight Eisenhower was asked if he made any mistakes as president, he admitted to two, and said they were both sitting on the Supreme Court. Expect what you want all you want, but be prepared for disappointment, for the justices are the most independent actors in our national cast.
If every justice’s decisions were preordained or programmed, there would be no need for committee hearings on nominees or oral arguments before the court. Just feed the briefs on each controversy into a computer, and out comes the decision.
It is always interesting to watch as Senators and legal commentators scour the record of a nominee to find opinions that seem off-kilter or writings that now can be interpreted differently. These are human beings, and even the greatest justices are capable of having a very bad day at the office. Read the majority opinion of Oliver Wendell Holmes in Buck v. Bell.
Ruth Bader Ginsburg was a remarkable person and jurist who possessed a rare combination of exceptional talents. It is quite understandable that those who revered her work and were inspired by her impact would want someone of similar capacity and outlook to replace her. But that is not the intention of those in control of the process, and moving a qualified nominee with a different judicial philosophy is not a per se abuse of power or discretion.
Dianne Feinstein showed old-fashioned grace by complimenting the conduct of the hearings and embracing Lindsey Graham. For that, she drew venomous denunciation from hardline progressives who would not tolerate any deviation from scorched earth political warfare.
Various commentators have held the hearings to be unnecessary, for reasons running from nothing would change to senators delivering what amounted to campaign speeches. For those who would like to have judicial processes cordoned off from politics, that train left the station in 1789. In shining the spotlight on the highs and lows of political processes when the stakes are the highest, we have fortunately come a long way from the days when the Senate would vote on confirmation the same day a nomination was received.
Every time there is a Supreme Court nomination, whether by a Republican or a Democratic president, we can be thankful there is not a mediocrity selected such as the series of spite nominees sent to the Senate by Richard Nixon before he finally landed on Powell and Rehnquist.
Whatever someone wants to think about timing or political expectations or balance or any other factor, Amy Coney Barrett is the kind of person, scholar, and jurist we should want to hold one of the nine seats on our highest tribunal.
David A. Atkinson is an Associate of The Susquehanna Valley Center’s Edward H. Arnold Institute for Policy Studies
Nothing contained here should be considered as an attempt to aid or hinder the passage of any legislation.
The views expressed here are those of the author and not necessarily those of The Susquehanna Valley Center.