Since the death of Justice Antonin Scalia over a year ago, the empty seat on the US Supreme Court has been one of the most contentious political footballs in Washington.
The debate has only gained greater intensity and gravity as the months have worn on, featuring two nominees, record-breaking congressional obstruction by Republicans, talks of an unprecedented filibuster by Democrats, tens of millions of dollars from outside groups on both sides of the political spectrum, and a president casually attacking federal judges.
The filibuster is looming, but most expect that Judge Neil Gorsuch – who was subject to 20 hours of questioning from the Senate Judiciary Committee this week – will eventually fill the vacancy and end the conflict.
But after such a toxic battle, that raises another question: at what cost?
The judiciary is an intentionally weaponless institution, held together by intellect, reputation, and an expectation of impartiality. (Alexander Hamilton described it as “the least dangerous” branch of government because it “has no influence over either the sword or the purse … but merely judgment.”) What toll might the events of the past year have on an institution built on a reputation of being above politics?
Sen. Lindsey Graham (R) of South Carolina raised this question on Wednesday while questioning Judge Gorsuch. Twenty years ago, he noted, the Senate confirmed Justice Scalia, a staunch conservative, 98 to 0 and Justice Ruth Bader Ginsburg, “the bastion of liberalism on the court,” 96 to 2.
“What happened? Did the Constitution change?” he asked. “I don’t think so. I think politics has changed. I think it’s changed in a way we should be ashamed of as senators, and I think we’re doing great damage to the judiciary.”
Trust in Supreme Court declines
Polling backs that up, particularly the notion that, as the appearance of politicization grows, public confidence in the judiciary declines.
Sixty-two percent of voters say that the justices are split on political grounds, according to a C-SPAN/PBS poll last week, while only 38 percent of voters say the court “acts in a serious and constitutionally sound manner.” The percentage of Americans who trust the Supreme Court “a great deal” or “quite a lot” has dropped from 56 percent in 1985 to 36 percent last June, according to Gallup.
But this may be in part because justices have increasingly decided cases on major hot-button issues in line with the politics of the presidents who appointed them. Federal judges in general are increasingly synchronized ideologically with the presidents who appoint them, scholarship shows. While this may be least true at the Supreme Court – the court rules unanimously far more often than many realize – on hot-button, partisan issues such as gun control and campaign financing (issues that drive political campaigns), the justices’ decisions often break along ideological lines.
Confirmation hearings only amplify this focus on the small number of contentious and ideological decisions. In the 20 hours of questioning Gorsuch faced this week, the Democrats who were grilling him only focused on a handful of cases, many of which he wasn’t involved in. These ranged from the “Hobby Lobby” case on religious freedom, to recent Supreme Court rulings on campaign finance, gun control, and the Voting Rights Act.
Gorsuch evaded many of these questions, repeatedly saying that it would be inappropriate for him to comment on cases that may come before him as a justice, and that he was “not going to get involved in politics.” (Judicial rules do forbid such statements). Republicans spent much of their time praising Gorsuch’s credentials, thanking him for his service, and asking him about his home state of Colorado.
"It’s sad. You’ve got a candidate like Mr. Gorsuch who by all accounts is so very well qualified, who's done a great job, and we’re just in the situation where we are: very politicized. A divided nation," says Sen. John Boozman (R) of Arkansas.
The shadow of Merrick Garland
But the aggressive questioning from Democrats can in part be attributed to the stronger political taint attached to Gorsuch’s nomination by Republicans’ unprecedented refusal to even call a hearing last year for Chief Judge Merrick Garland, then-President Barack Obama’s nominee.
While Republicans could argue that Democrats would do something similar – having threatened to do so during the two Bush presidencies – “the GOP’s action has helped further poison an already poisonous atmosphere around these issues,” writes Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, in an email to the Monitor.
On Wednesday, Sen. Al Franken (D) of Minnesota said that “the argument that we should judge, and are judging, candidates only on their qualifications is betrayed by the fact that those are the same people that blocked Merrick Garland, and Merrick Garland has every qualification.”
Recent comments from President Trump attacking federal judges have only added political charge to the confirmation process, experts say.
While it is not unusual for presidents to criticize courts and judges for decisions they don’t like – Obama once criticized a Supreme Court decision in front of all the justices during a State of the Union address – personally attacking specific judges is going a rare step further. Mr. Trump has continued to launch such attacks – saying a panel of federal judges that upheld the block on the travel ban would be responsible for future domestic terror attacks, and telling a fundraising dinner earlier this week that he will “criticize judges” hours after Gorsuch described such targeting of the judiciary as "disheartening and demoralizing" in testimony. While this probably isn’t contributing to an actual politicization of the judiciary, it may be contributing to an appearance of the politicization of the judiciary.
“Many (who agree with him, or who disagree with him) see his comments as reflecting some political reality about the courts – that the courts are merely political,” writes Steven Schwinn, a professor at the John Marshall Law School in Chicago, in an email to the Monitor. “Politicians should respect the apolitical role of the courts and promote that role in order to promote public confidence in the courts and, ultimately, to promote the rule of law.”
Filibuster support unclear
It is these frustrations and fears that saw Senate minority leader Chuck Schumer take to the Senate floor on Thursday and declare that he would vote against confirming Gorsuch.
The judge, Senator Schumer said, “was unable to sufficiently convince me that he’d be an independent check” on Trump, and was unable to show that he “could rule free from the biases of politics and ideology.”
“If this nominee cannot earn 60 votes,” he added – enough to avoid a filibuster – “the answer isn’t to change the rules – it’s to change the nominee.”
He's calling for a filibuster, but it's unclear how much support there is for it within his conference. For his part, Chuck Grassley, chair of the Senate Judiciary Committee, later accused Schumer of being “a no vote in search of a reason to vote that way.”
While Gorsuch’s evasions may have frustrated Democrats, some experts think the hearings may have somewhat mitigated the damage the political war over Scalia’s vacancy inflicted on the judiciary.
“I wish people watched the [confirmation] hearings more. Because it always turns out that these nominees are extraordinary and admirable folks,” writes Ernest Young, a professor at the Duke University Law School, in an email to the Monitor. “The quality level of our top judges, both as lawyers and as people, is incredibly high in this country, and when you see what these folks are really like, it tends to settle people down a bit.”
Staff writer Francine Kiefer contributed to this report.