Chief Justice John Roberts has now pretty much confirmed what many American independent, centrist and moderate voters have more than suspected: if Justice Anton Scalia or Justice Ruth Bader Ginsburg had been nominated today, they wouldn’t get confirmed:
United States Chief Justice John Roberts told a Nebraska audience he worries the partisanship that grips Washington will spill over onto the Supreme Court.
WILL spill over? Some would argue that some of the Court’s rulings suggest it has already spilled over.
Roberts said he’s concerned about the other two branches of government.
“They are not getting along very well these days,” Roberts said during a question and answer period at the Nebraska College of Law. “It’s a period of real partisan rancor that, I think, impedes their ability to carry out their functions.”
…Eighth Circuit United States Court of Appeals Chief Judge William Riley asked Roberts questions during the hour-long session, admitting to the audience that Roberts had seen the questions ahead of time.
…..Roberts asserted strongly the court isn’t partisan, divided into Republicans and Democrats, though he conceded an intelligent lay observer of the confirmation process might come to a different conclusion.
“And how somebody as imminently qualified as our newest member, Justice (Elena) Kagan, is confirmed by almost a strict party-line vote. You think, well this must be a political entity, because they’re putting people on or rejecting them on partisan, political lines when that’s just not how it works,” Roberts stated. “So, I’m worried about people having that perception.”
Roberts claimed that hasn’t always been the case, illustrating his point by focusing on the two Justices who represent perhaps the widest philosophical differences on the court.
And so he pointed to Ginsburg and Scalia. Perhaps his one inaccuracy is that many Americans now believe the court is already damaged goods and are surprised when a ruling doesn’t come down that fits a perception that the deck is stacked. There are few “givens”; yes, this court is indeed being perceived as an activist court, one willing to toss out longstanding legal “givens.”
A Gallup Poll in July found Americans divided on the court — with Republicans being increasingly happy, and Democrats increasingly less happy. Gallup concluded:
Americans remain split on the job the Supreme Court is doing, and the current approval rating is on the low end of what Gallup has measured since it began asking the question in 2000. The biggest change in Americans’ views of the court this year has been the flip in partisan approval.
Controversial decisions since 2012 have resulted in dramatic changes in views of the court among Americans of different party affiliations. However, this term, nearly two-thirds of the court’s decisions were unanimous, in contrast to the 5-4 split in the two high-profile cases at the end. Americans’ current views more closely reflect the court’s own ideological divisions in these two recent decisions, rather than its bipartisan unanimity.
A poll in May wasn’t much better:
Only about a third of Americans believe the Supreme Court decides cases based on the law alone, according to new polling data about the court.
According to the new poll, Americans believe the Supreme Court justices are political, letting their personal views sway their decisions — an opinion held across party lines. And more than three-quarters of Americans oppose the Citizens United ruling four years after the Supreme Court handed down the landmark campaign finance decision.
By large margins, Americans say they would also like to see more openness and accountability from the Supreme Court — on topics from access to courtroom proceedings to financial disclosures and ethics rules — as well as an end to lifetime terms.
The polling, done by Greenberg Quinlan Rosner for Democracy Corps and provided in advance to BuzzFeed, comes as the justices are considering the final cases of the term, all of which are expected to be decided by the end of next month, and tracks with other polling from Pew and Gallup showing the court’s favorability at historic lows.
Most likely: we’ll start to see stalemates in Supreme Court nominations that draaaaaaaaaaaaaag on forever and the only candidates that will be able to be confirmed will be those who are as evasive as politicians trying to squirm out of answers that might hurt them in a primary election.
Attorney Doug Mataconis gives an excellent analysis, and here’s part of it:
Going forward, there are likely to be a series of Supreme Court nominations that a future President will make that are likely to be contentious. Justice Scalia is 78 and Justice Ginsburg is 81, and Ginsburg has dealt with health issues in the past and been the subject of numerous articles from people on the left suggesting that she ought to step aside for the good of the Democratic Party. Justice Stephen Breyer, who has generally had a quiet and noncontroversial tenure on the Court, is 76 and, perhaps most importantly, Justice Anthony Kennedy is 78 years old and just a few months younger than Justice Scalia. Whether by choice or because health reasons make it necessary, it’s inevitable that we’ll see several of these step aside in the coming years. When that happens, and again no matter what happens with regard to control of the Senate or the White House, we’re likely to see a contentious nomination process and, most likely, the selection of nominees who are basically ciphers in order to try to guarantee confirmation. Because of that, we’re not likely to see Justices of the caliber of Scalia and Ginsburg come out of the process, and that’s a loss for the nation.
1 Since 1968, there have been 23 nominations to the Court, 4 of which has been considered and rejected by the Senate, for a failure rate of 17.9%, roughly equivalent to the historical average.
In fact, it’s safe to say that given the trending in our politics, we’ll see the Talk Radioization of Supreme Court nominations where each nomination becomes material for radio and cable political activist confrontations (you can just see the screaming segments now where a smug host or anchor says afterwards, “We’ll have to have you back!!”). Each nomination will be a new battleground in the 24/7 partisan and ideological wars that are intensifying as American heads further into the 21st century.
And, yes, our legal system will suffer by increased polarization and ugly partisanship.
Just as our political system has already suffered and, it appears, will increasingly suffer.
But Roberts ought to look at his hands as he examines this problem: they’re not clean.
graphic via shutterstock.com
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.