In some respects, the most revealing (and disturbing) exchange in the final presidential “debate” involved no essential differences in principle.
The moderator, Chris Wallace, asked both candidates for their ideas about Supreme Court appointments. It has escaped no one who cares to notice that the court has limped along with eight members since Justice Scalia’s death. The potential for deadlock has been extended by Senate obstruction, not merely of President Obama’s nominee for the vacancy but of the constitutional process itself.
Article II provides that presidents “shall have power” to appoint “judges of the Supreme Court,” with the consent of the Senate. It is arguable that by refusing even to schedule hearings or a vote on the president’s nominee, the Republican majority is in breach of that provision. That the president’s nominee is widely respected for judicial integrity seems to make no difference. What the two presidential candidates said in the last debate helps explain why it doesn’t.
Both candidates seem to regard the court as a political lapdog rather than as a balance wheel maintaining constitutional integrity.
Donald Trump did not attempt to disguise his intent to pack the court with justices who embrace a “right to life” ideology and would overturn Roe v. Wade, the precedent most valued by women of Hillary Clinton’s outlook. He would transform the court into a rubber stamp of his own narcissistic mind-set. Just what he would do to reinforce his distorted view of the Second Amendment, which he accuses Clinton of wishing to nullify, no one knows.
As a graduate of Yale Law School, Hillary Clinton should have a more artful grasp of the judicial function and doubtless does. But she also laid out a political agenda that is in some respects the 180-degree opposite of Trump’s, with “the right to choose” (abortion) paramount. She balks at limiting that right at any stage of pregnancy, although the Roe v. Wade decision envisioned an enlarged state authority in the second and third trimesters. Otherwise, she would seek to reverse the court’s ultra-permissive licensing of political spending in the name of free speech. It is a political agenda with which many agree, respectable enough in a campaign platform. But it has no place in the evaluation of Supreme Court justices – for a self-evident reason.
How would the future views of appointees be obtained? Does Mrs. Clinton (and Trump) plan to interrogate nominees, seeking pledges to vote in predictable ways, regardless of the merits of the cases that come before them?
With both candidates embracing a politicized concept of judging, hence of judicial nomination, we might ask what ever happened to jurisprudence – the high art of deciding “cases and controversies” according to permanent principles that pass the tests of time and mood. Those principles can never be immaculate; but they ought to embody an impartial conception of the judge’s role: one that was largely missing in the final debate.
The trend towards a politicized bench was exacerbated by an epic nomination battle of three decades ago, when Senate Democrats turned President Reagan’s appointment of Judge Robert Bork into a partisan circus. Though the choice was not free of ideological calculation, its larger significance was Bork’s distinction as an exponent of “neutral principles” of judicial interpretation. His scholarly writings were a quest for those principles, beginning when he taught constitutional law (to both Clintons, incidentally) at Yale. They remain the principles to which unbiased jurists should be dedicated, and the more important for the complexity of the quest.
Both candidates have embraced a populist ethos. The Trump-Clinton conception of appointment suggests that court nominees should, as the price of appointment, commit themselves to ratify whatever ideology, whether of right or left, is prevalent, whether or not such commitments are fair to future litigants. Both agendas could distort the vital work and duty of the Supreme Court, transforming it into a body of diminished integrity and fairness.
It has happened before in our history; it could happen again.
Contributing columnist Edwin M. Yoder Jr. of Chapel Hill is a former editor and columnist in Washington.