Justice Antonin Scalia’s passing comes at a bleak time for the Supreme Court and U.S. politics. The impending nomination of a new Justice has made the government and Supreme Court’s vicious partisanship clearer than ever. Republicans’ fear of a liberal appointment and Democrats’ determination to “shift the court left” has created a battle of political expediency rather than judicial effectiveness. The court has become perilously divided on party lines; this nomination must be about halting rather than furthering its decline. No matter the political inexpediency, it is imperative that the nomination go to a moderate judge. Such an appointment will have the best chance of clearing the Senate, allow the court to rule effectively on rather than delay critical legislation, and begin to reclaim the bench from partisan dominance.
Several recent editorials in the New York Times, Los Angeles Times and Guardian characterize the court as more polarized than ever before. In her piece in the New York Times, former Supreme Court correspondent Linda Greenhouse argues that the conservative majority has made the court an “agent of partisan warfare.” She highlights several cases, such as Arizona et al. vs. the United States, where Justice Scalia’s dissent irrelevantly addressed external politics and toed the Republican Party line. Additionally, she points to the Court’s verdict to block Obama’s clean power plan, with every liberal judge dissenting against the decision and no lower court’s prior consideration, as an example of conservative judges following politics rather than jurisprudence.
An article in The Atlantic compiled data showing that the number of one-vote-majority decisions under Chief Justice John Robert’s leadership (2005 to 2012) was higher than under any other Chief Justices’ leadership. These close decisions mean there was frequent deadlock between the court’s four conservative and four liberal judges, with one “swing vote” (often Justice Kennedy, a moderate-conservative figure) breaking the tie. After Scalia’s passing, this polarized court now stands at a 4-4 impasse.
The danger of judges voting on party lines is clear in recent decisions like Citizens United vs FEC and Shelby County vs. Holder, both decided by 5-4 verdicts and both split between liberal and conservative judges. The former eliminated corporate campaign spending limits, while the latter gutted the Voting Rights Act. When a polarized court is not deadlocked, it is drastically changing the political landscape based on the dominant party’s ambitions. The newly appointed judge will shape the court’s ideology for decades; it is more critical than ever that this nomination moves the court away from partisanship and toward moderation.
Too many have adopted an analysis similar to Goldstein’s, arguing that, in light of Republican opposition, Obama’s appointment should reflect political expediency. One idea is to nominate a liberal judge, so as to, in Goldstein’s words, “gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election.” This would be a betrayal of the president and the court’s values. Stooping to the Republicans’ level in a cheap attempt to score points is an immature, irrational motivation. With no chance of passing the Senate, a liberal nomination would only serve the Democratic presidential candidates by energizing voters against Republican obstructionism. Even if this victory goes the Democrats’ way, in future elections the Republicans have every chance of shifting the court to the right again.
The court should represent more than a political seesaw. While there is no miraculous cure, a moderate appointment would be a compromise in the right direction. This judge could push the court outside of the polarized political climate. The newly balanced court would reflect neither a conservative nor a liberal majority; decisions would require the swing votes of at least one, and possibly two, centrist judges with little to no party affiliation.
Though some would argue that a moderate appointment will have just as little chance of approval as a liberal one, it is more feasible than many would expect. The Republican Senate is not a monolith; there is a diversity of opinion concerning this nomination, and many Republican senators could be willing to proceed. If the administration seeks a center path, it would at least show a newfound willingness to compromise and engage with those across the aisle. In the case of the Supreme Court, it is more important to push for a balanced court than seek cheap political shots.
In such a divided time, it may seem naïve to be arguing for judicial efficacy. Yet this is about the law, not strictly politics; as related as they may be, this is one institution that must try to retain its independence. This nomination cannot heal the wounds of partisan division, but it can take the first step in pushing the court in a moderate direction. While it may be difficult to relinquish the opportunity to “shift the court left,” this appointment is about much more than party politics. Without compromise and a semblance of bipartisanship, the nation can only expect a court constantly swinging between the parties’ ambitions.