At a mundane level, the battle over the late Justice Antonin Scalia’s vacant Supreme Court seat is a familiar exercise in party warfare and partisan rudeness. At a deeper level, it is a dagger pointed at the heart of the constitutional system. And both parties share responsibility for the danger – the continuing trend toward plebiscitory judiciaries, state and federal, labeled by party and dedicated to partisan errands.
It was, after all, President Barack Obama’s chief detractor, Mitch McConnell, leader of the Senate Republicans, who declared on the morrow of Obama’s election that his primary goal was to prevent Obama’s re-election – never mind the quality of the new president’s performance. McConnell failed there, and his pseudo-historical excuses for the latest exercise in obstruction could blow up in his face.
He and his followers argue that it is irregular for a president in his final year to fill a court vacancy. Never mind that, according to the New York Times, there have been 14 such nominations. They argue (if “argue” isn’t too exalted a word for their disingenuousness) that with an election approaching the voice of the voters should override all other considerations, including the convenience of the court. This assumes that elections are suitable referenda on judicial qualifications and that voters who hardly know one court from another rather than presidents should make the critical judgment.
The trend toward a populist judiciary, mirroring rival political outlooks, has been gaining momentum for decades. Nixon’s Republican followers torpedoed Lyndon Johnson’s respectable nominee, Abe Fortas, to be chief justice. John Mitchell, who as Nixon’s attorney general was up to his neck in the Watergate mischief, sought Justice William Douglas’ impeachment out of puritan distaste for his private life. Years later, the Democrats retaliated with their partisan assault on Robert Bork, another highly qualified jurist who would have strengthened the court. Joe Biden, then chairman of the Judiciary Committee, and Edward Kennedy stooped to many distortions to stop Bork.
Is it any wonder that the public and the chattering parrots of television now tend to view the Supreme Court as a mere political body in which “liberals” and “conservatives” vie for the privilege of settling your legal business?
A case can be made that the roots of this dispute over the function of judges go back to the epic struggles of the early 1800s between two eminent Virginia cousins, Thomas Jefferson and John Marshall, over the proper role of the judiciary in a republic. As a chief justice of Federalist origins, Marshall ruled in the 1803 case of Marbury v. Madison that it is pre-eminently the function of the judiciary “to say what the law is.”
Marshall’s decision was both clever and cagy. He and his court threw out a congressional statute that had awarded original jurisdiction in certain cases and accordingly denied Mr. Marbury his seat as a federal magistrate. In its veiled partisan aspects, the case foreshadowed the current battle – although if Marbury was a dangerous fanatic no one remembers it. Marshall denied the Supreme Court a statutory power and sustained Jefferson’s rebuff to Marbury. But in so doing, he set the crucial precedent of judicial review and scolded Jefferson for undercutting a valid presidential appointment by his predecessor, John Adams.
The case mirrors a persisting difference of opinion in American history about the role of judges. Had it been left to Jefferson, the now 213-year-old power of judicial review would not be given to the Supreme Court or any other. Jefferson was bitterly opposed to Marshall’s ascription of the function of reviewing laws, and annulling some of them, to courts and judges. His view was that new-world judges ought to be restricted, like their British colleagues, to the tame interpretation of statutes, ruling singly – not as a body. In their populist notions, Madison and Jefferson had favored the establishment of a “council of revision” within the legislative branch to pronounce on issues of constitutionality, but the framers failed to write it into the Constitution.
A cautionary footnote, pertinent to the present dispute: A written constitution that distributes roles, functions and rights in detail, as ours does, could not survive a politicized Supreme Court. A written constitution with designated restrictions needs guardians to maintain its structure and ignore passing fashions.
It is that pivotal function that McConnell and his followers are now imperiling.
Edwin M. Yoder of Chapel Hill is a former editor and columnist in Washington.