What follows is based on remarks I recently gave at the Seventh Circuit Judicial Conference, regarding “President Trump and the Future of the Supreme Court.” Yesterday I addressed the issue of judicial deference to President Trump; today, I address judicial appointments. I will note that of the many diverse issues raised on this panel, these comments and the exchanges that followed with my co-panelists raised by far the greatest audience interest – with questions and comments spilling over to hallway and meal discussions throughout the day.
President Trump trumpeted – well, tweeted – as one major accomplishment of his first hundred days the fact that within that short time he appointed a Supreme Court Justice. That, of course, was only because the Senate’s Republican leadership refused even to consider President Obama’s nominee a year earlier.
Thus denying President Obama his constitutional role in helping to determine the Court’s composition dramatically altered our nation’s third branch and constitutional future. The last time a majority of the Justices were appointed by a Democratic President was 1969. If the Senate had acted responsibly, that 48-year run would have ended with Merrick Garland’s confirmation. I would suggest this is the correct way to think about what was tantamount to a partisan theft of a Supreme Court seat – and not the often-repeated deep mischaracterization of Gorsuch’s appointment to Justice Scalia’s seat as not altering the ideological composition of the Court.
The effort for Gorsuch escalated a decades-long dramatic difference in resources and priorities between those on the ideological left and those on the ideological right, generally between Democrats and Republicans. The Republican Party began a serious focus on judges in the 1980s, coinciding with the founding of the Federalist Society and the election of President Reagan, who together with his Attorney General Edwin Meese emphasized the president’s role in shaping constitutional law through judicial appointments. A 1989 Department of Justice detailed report on “the Constitution in 2000” sought to educate the Senate and the public about the importance for a range of vital issues of who is appointed to the federal bench: “There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate … the federal judiciary.”
The Reagan administration was right about the importance of who sits on our federal courts and the relevance of nominees’ “values and philosophies.” A new low was set by Gorsuch’s extreme and unjustified refusal to answer questions about his legal philosophy and views – to act as if even asking the questions was an affront to the process. He did so and was confirmed anyway because the Republicans possessed the raw political power, but it was bad for the process and the nation. No future nominee should be permitted Gorsuch’s extreme refusal to answer such entirely appropriate questions.
Chief Justice John Roberts exacerbated the pretense after Gorsuch’s confirmation by remarking that there are no Republican or Democratic judges. In fact, our nation’s future was dramatically changed for having a Justice Gorsuch rather than a Justice Garland. It certainly made a difference whether a Democratic or Republican President filled that seat.
Which of course is why the Republicans went to such lengths to take the seat – and why unidentified outside sources expended millions of dollars to achieve that end. This is perhaps the most disturbing and new aspect of the partisan imbalance, which will continue to push the Court to the ideological and pro-corporate right – unless and until we are able to fix it, which I believe should be a bipartisan objective. Our nation would benefit if we could fix the process by which we appoint judges, to make it more honest and transparent and less a reflection of the raw political power balance in that Senate at any particular moment. And no one who cares about our nation’s judiciary should aspire to see judicial appointments reflect the worst aspects of our increasingly money-dominated system of electing the two political branches.
Listen to this press statement from the Judicial Crisis Network, headed by my co-panelist Carrie Severino, describing the organization’s expenditure of $17 million of dark money for “a national campaign to confirm President Trump’s nominee to the Supreme Court:”
Coming off of its . . . victory in the Garland nomination battle, JCN will engage a comprehensive campaign of paid advertising, earned media, research, grassroots activity, and a coalition enterprise, all adding up to the most robust operation in the history of confirmation battles. JCN and its allies will focus on states where Senate Democrats are vulnerable in 2018, particularly those where Trump won by large margins. JCN spent more than $7 million in its Let the People Decide effort [against Garland], and it expects to spend at least $10 million to confirm the next justice. “We will force vulnerable Senators up for re-election in 2018 like Joe Donnelly and Claire McCaskill to decide between keeping their Senate seats or following Chuck Schumer’s liberal, obstructionist agenda,” said Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network. “Any vulnerable Senator who signs up for Schumer’s obstructionist strategy will pay a heavy price in 2018.”
Having massive amounts of dark money, including from corporations and overwhelmingly in one ideological direction, creates a dangerous imbalance, corrosive to our system of government. Our treasure of an independent judiciary is built upon an assumption of independence, of transparency about influence and potential conflicts, and accountability to the democratic process. When massive amounts of dark corporate money can affect those political processes, we are in grave danger of damaging that national treasure.