The U.S. Supreme Court Is the Next Victim of Hyper-partisanship

The American judicial nomination process has always been captive to opposing political ideologies but the escalating battle following Scalia's death could risk it all.

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חזית ביהמ"ש העליון בארה"ב
חזית ביהמ"ש העליון בארה"בCredit: AP
Amiel Ungar
Amiel Ungar

Despite my preference for the American judicial selection model over the Israeli model, the American system is currently in danger of self-destructing.  The problem is not the selection method itself, but the absence of partisan restraint that is plaguing the entire American system.

The American system that allowed a president to nominate to the bench someone who represented the political and judicial views of those who elected him, and expect that nominee to be confirmed following the senate vetting process, was up front. It recognized that the nominee's personal philosophy and political outlook would partially shape his opinion - as opposed to the Israeli system's conceit that a high court justice would dispense distilled jurisprudence regardless of his background, a subterfuge for packing the court with representatives of an interventionist  philosophy.

The American judicial selection process allowed the high court to adjust to political trends and new ideas on a gradual basis, because a president during his at best eight year term can only partially determine the court's make up rather than perform a complete makeover.  Judicial handicapping is also far from foolproof, and once on the bench justices could sometimes confound the expectations of their original sponsors. This also worked in favor of gradualism and prevented the court from being totally hostage to swings in the political pendulum.

Both Republicans and Democratic were content to play by the rules of the game in vetting a nominee, aware that the shoe would shortly be on the other foot.

True, nominees did not always sail through. However, the main reasons for a nominee's senate rejection was his lack of credentials, a la Nixon's 1970 nomination of Harold Carswell. Carswell's leading defender in the senate was Roman Hruska of Nebraska, who memorably argued: "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos." He was unconvincing and many Republican senators joined their Democratic colleagues in rejecting him.

Candidates have also fallen because it was shown that they had not recused themselves in clear cases of conflict of interests. This proved to be the undoing of another Nixon nominee, Clement Haynesworth. Sometimes a nominee's abrasive personality and cocksureness rubbed the senators the wrong way. A nominee was rarely rejected for his judicial philosophy.

This tradition was breached in 1987, with the abortive nomination of Robert Bork, who had gilt-edged academic professional and judicial credentials. He, however, outspokenly backed judicial restraint.  This made Bork anathema to interest groups who were beginning the process by which the two major parties lost their role as interest aggregators - attempting to strike a balance between a range of interests - and became interest articulators - almost indistinguishable from the interest groups that supported and funded them. Therefore the then-Democratic presidential aspirant and Senate Judicial Committee Chair Senator Joe Biden led a successful filibuster campaign to deprive Bork of the nomination.

From here we were a merely a short step from the silliness that followed the death of the conservative legal titan Antonin Scalia. The American voter was reminded that not only were the White House and Congress up for grabs this November, but the Supreme Court as well. Some pundits advised Barack Obama to place a nominee from a key swing group, for example a justice of Indian extraction, and then sit back and enjoy the backlash benefits if the Republicans stuck to their guns and refused to approve any Obama nominee.

Well, say defenders of the Israeli system, this is what you get when the judicial nomination process is captive to political ideology - and therefore our judicial selection panels are superior. What is happening in the United States is the blurring of the difference between up front and in your face.  It is one thing to back an eminent jurist who filters his legal philosophy through the law, and another thing to reduce the jurist to the level of a talkbacker on a website.

If both Democrats and Republicans persist with their foolishness, they will deserve and get an Israeli system where only those bland and inoffensive to both sides get in, or at best we get a quid pro quo where for each liberal justice you get a conservative.

Both sides charge each other with the descent into the abyss. As I have indicated, I believe that the Democrats were the original aggressors during the Bork hearings; others will differ, but that is beside the point. The abyss is wide and deep enough to accommodate everybody.  

This is not a fight that resembles a budget deadlock that is eventually resolved. What it at stake is respect for the judiciary and once that respect is lost it will prove hard to restore it. Perhaps the situation's gravity will impress saner heads in both parties to step back from a frontal collision and then leverage that success to shed the hyper partisanship that has crippled American leadership at home and abroad.

Amiel Ungar is a political scientist.

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