Supreme Court Politics for the Sake of Politics

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at Supreme Court Judge politics. Read his previous OUPblogs here.

That the selection of Supreme Court Justices has become a deeply politicized process was one of the most invidious legacies of Franklin Roosevelt, who once tried to “pack” the Court with liberal justices sympathetic to the New Deal.

In trying to extricate himself from this legacy, President Obama has gone out of his way to nominate (what he deems to be) one of the least controversial candidates out there. It is in his interest to, because it would be unwise for him to squander political capital when the potential gain is limited. The most he can achieve in the present nomination iteration is to maintain, rather than alter, the ideological balance of the Court.

That the president has partly succeeded in preempting controversy can be seen in the fact that conservatives have not yet decided if Sonia Sotomayor is worth opposing. Moderate Republicans are especially afraid that a concerted attack on Sotomayor will alienate their party from Hispanic voters. The debate is about whether or not to have a debate; the controversy is whether or not Sotomayor is controversial. Barring a startling new revelation about Sotomayor’s past, this is about as good as it gets for any modern Supreme Court nominee.

Yet the fact that there is nevertheless a controversy about whether or not Sotomayor is controversial is poignant enough, a reflection of our thirst for politics and our confusion of politics as the end rather than the means for achieving nobler ends.

What is often missed is that the more intense our debate about the suitability of a particular nominee for the Court, the more we imply that Justices are incorrigibly nepotistic, and all we can do is to select someone on our side. If Justice Sandra Day O’Connor once marveled at the majesty of the law, our nomination wranglings reflect our burlesquing of the Court. Here is the paradox: even if partisans and lobbyists succeed in sending their favorite to the Court, they would also have deprived the new justice of a measure of legitimacy s/he would have had if s/he had been admitted to the bench without their advocacy.

Perhaps the stakes are too high, as fans and enemies of every new nominee contend. But piecemeal and short-term gains can come at a great institutional and long-term costs. Supreme Court justices are no longer perceived to be women and men capable of setting aside their personal opinions or transcending their ideological biases. In politicizing the Court, we are disrupting the constitutional balance of respect, and contributing to the tyranny of the elected branches and in particular the president, who, let the record reflect, doesn’t only execute the law (as the commensurate expectation ought to be if we insist judges should not make law) but also makes it in the form of executive orders and in the veto power (which is a legislative power, enumerated with Congress’s powers in Article 1 of the Constitution).

So it should come as no surprise that the first president who seriously tried to politicize the court, Franklin Roosevelt, was also one intent on his particular interpretation of the constitution and having his legislative way. Kudos to any president and any citizen with the foresight and restraint to treat a co-equal branch of government as a bulwark of our constitution and not another political playpen.