Tuesday, October 13, 2020

An Absurd Process

Putting aside for the moment the more fundamental issues of democratic legitimacy involved in the Barrett nomination in the very middle of an election, let us look instead at the absurd process by which the Senate gives its "advice and consent."

Committee hearings are obviously nowhere specified in the constitution. Of course, that is not the problem with committee hearings. The problem is that the present process presumes, indeed requires, the nominee to feign open-mindedness concerning upcoming cases. Like those supposedly "undecided" voters, one wonders whether there really are any such open-minded candidates out there. But, if there were such, it is fairly reasonable to suggest they would have little chance of being nominated. Of course, there have been Justices whose eventual rulings on the bench have turned out to be a surprise. But that was not why they were chosen. In the past, justices have been chosen for all sorts of reasons, including ethnicity, race, and gender. In the current condition of American politics, justices of the Supreme Court are picked primarily because of how they are expected to rule. Whatever Judge Barrett may say during the hearings, everyone knows that the only reason she was nominated was the reasonable expectation that she will rule reliably the way her Republican party patrons want her to. The same would presumably be true of anyone nominated by the next president if by some miracle the process were to be delayed, as it should be, until after January 20. And, given the hyper-political character of the contemporary Court, could it be otherwise?

In her pre-released statement, Judge Barrett said "Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try,"

If only that were true! I agree completely that courts are neither designed nor equipped either to solve all our problems or to right every wrong. The problem is that courts have claimed this role for themselves and, absent any willingness on the part of Congress to check the Court's increasingly unbridled power, society as a whole has come to share that same expectation. In any case, given the reality that the Court consistently behaves that way and as consistently gets away with it, is it any surprise that virtually everybody, anywhere on the political spectrum, supports or opposes judicial nominees largely in the hope - or fear - that they will advance particular policies and values, regardless of the actions of "the political branches elected by and accountable to the People"?

It was, for example, the political branches that enacted the Affordable Care Act in the first place. Despite repeated promises to repeal it, the Republican Congress failed to do so. Yet, in spite of those obvious actions on the part of those elected by and accountable to the people, a group of Republican Attorneys General, supported by this Administration, have sought to circumvent the political process and enact an alternative policy via the judiciary. Of course, absent a crystal ball, no one can with certainty predict how a Justice appointed by this Administration might rule on that case which will be heard on November 10. But one can do so with reasonably probable certitude (i.e., without fear of error). Were this not the case, would there be any reason for this rushed appointment, this unseemly haste, literally in the middle of an election, not to mention the willful ignoring of more immediate issues in the midst of a deadly pandemic?

Of course, courts could act as Judge Barrett describes in her statement. In that case, judicial appointments would matter much less. Her own appointment might then be much less controversial or, more likely, might never have been made. But that is not the world we live in, thanks largely to repeated congressional failure to check the Supreme Court.

Congress could, of course, as it has in the past, act to limit the federal courts' jurisdiction in certain cases, in accordance with Article 3, section 2 of the Constitution. It could, of course, as it has in the past, alter the number of justices on the Supreme Court and on other federal courts, in accordance with article 3, section 1. (The Judiciary Act of 1789, for example, established a six-member supreme Court. It rose to seven, then nine, then ten, and has been nine since 1869.) And, of course, the Constitution could also be amended to set specific terms for Justices, which could be staggered in such a way as to give each president one or two appointments per term, which would automatically diminish the sense that everything is at stake every time there is a vacancy..

In the absence of such reforms, however, this indefensibly anti-democratic institution stands ready on a regular basis to nullify the popular will on everything from universal access to health care to the role of money in elections. So, of course, court appointments are occasions for periodic national freakouts, exacerbated by a hypocritical and absurd confirmation process.

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