Thursday, March 17, 2016

SCOTUS & the Election (Again)

Once upon a time, Supreme Court nominations and confirmations were routine matters.  By that, I don't mean that they weren't taken seriously by either the President or the Senate, but rather that when a vacancy occurred it was filled as the constitution prescribed. That the current Supreme Court vacancy has become just one more casualty of our polarized politics and dysfunctional election campaign is, in this instance, first of all a consequence of Republican obstructionism. But more deeply it highlights the absurdly outsized role the Supreme Court has come to play in American life. Otherwise why would it matter so much which party gets to choose the next Justice? When an institution can - and regularly does - do as much damage as the Supreme Court has done over the course of our history, then, of course, Court appointments are going to become politicized. 

The damage done by the Supreme Court over the years has been incalculable. This is the institution that has given us Dredd Scott v. Sandford, Plessy v. Fergusson, Lochner v. New York (and the whole pro-business "Lochner era" which that decision gave birth to), Buck v. Bell, Korematsu v. United States, Griswold v. Connecticut, Roe v. Wade, Bush v. Gore, Heller v. District of Columbia, and Citizens United v. Federal Election Commission.

Obviously, one can also find Supreme Court decisions one agrees with and which have been of genuine benefit to the country. That's not the point, The point rather is the Court's unaccountability for its "interpretation" of the constitution. That is what makes its membership a political issue and why every four years or so we hear from one or both sides that the important issue in the election is which party will get to pick the next Supreme Court Justice, which may be true enough but represents a terrible distortion of emphasis given the many properly political issues facing the electorate.

The Founders undoubtedly did not intend the Supreme Court to wield so much unaccountable power. So they confined the Court's accountability to the appointment process. That process is much more democratic now than the Founders had ever intended. So the democratic check, such as it is, on the Supreme Court is that its Justices are chosen by the President, who is himself now chosen in the closest thing we have to a popular national election, then confirmed by the Senate after a public process of hearings and debate. While a presidential election, under our constitutional system, is not a straightforward national plebiscite, it is the closest we ever come to one and over time has acquired the symbolic resonance of one. Hence the importance of respecting and following the president's constitutional mandate in regard to filling Supreme Court vacancies.That mandate - let Senators be reminded - was given by the American people to President Obama in 2008 and overwhelmingly renewed in 2012, and doesn't expire until noon on January 20, 2017.

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