They speak of their intentions, these Republicans do, as if a president’s duty to nominate members of the U.S. Supreme Court was nothing more than a checkoff of Oval Office duties. So if the next president is Hillary Clinton, GOP senators including North Carolina’s Richard Burr and Arizona’s John McCain, say they’ll just resist Clinton’s nominees, and leave the court with its current eight justices, and perhaps fewer if other sitting members leave the court. Thus, one of the three branches of this democracy would be weakened and damaged, perhaps beyond repair.
There have been times when some nominees didn’t pass muster because of their own records or what was viewed by some senators as extreme views — Bork, Carswell, Haynsworth. In other cases, nominees were seen even by allies of the president’s party as underqualified. In modern history, it’s true that those rejected have been put up by Republican presidents, and that may be part of the source of the resistance to Clinton’s potential nominees.
But the Senate Democrats did give approval for a controversial nominee, Clarence Thomas. And many Democrats backed the late Antonin Scalia, an archconservative with a formidable intellect. Democrats knew he would not be supportive of their views, but they also knew he was qualified. They felt the same way about current Chief Justice John Roberts.
It appears, however, that arguments about the court are now far more intense, more partisan, more ideological. For senators to say they’ll leave seats vacant is astonishing. And it would render the justice system, and the legislative system, in a state of chaos.
What would have happened, for example, if the Supreme Court had had just eight members and had deadlocked on the Affordable Care Act, most of which was affirmed by a Roberts opinion?
What if that had been the case during the fight for civil rights? Southern courts would likely have ruled against integration and voting rights, with other courts in favor. Different laws for different regions. A country divided.
The Supreme Court is vital to ensure consistency in the drawing of the law by legislatures and the enforcement of it. There must be a final authority.
Presidents should consult with leaders of Congress on high court appointments. But the American voters in effect signal their preferences in judicial philosophy every four years, when they vote for president knowing that he or she will have the power to appoint federal judges. So in a real sense, those senators such as Burr, McCain and others who say they’ll ignore the nominees of a president of a different party are also ignoring that most fundamental guiding principle of America’ freedoms — the will of the people.