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Filling Supreme Court vacancies: political credentials vs. judicial philosophy

In the current, hyper-partisan environment, relatively few individuals publicly supported the confirmations to the US Supreme Court of both Justice Samuel A. Alito, Jr., and Justice Sonia Sotomayor. I know because I am one of these lonely souls. Now, the same considerations which led me to support their confirmations lead me to support the confirmation to the Court of Judge Neil Gorsuch.

To the many who view the Supreme Court in purely partisan or ideological terms, this pattern is inconsistent, if not bizarre. For those who prize the rule of law in our deeply polarized society, this pattern is compelling.

The US Supreme Court serves two institutional roles, ultimately in tension with each other. The Court is literally the third branch of government. Article III of the US Constitution commands that “[t]he Judicial Power of the United States, shall be vested in one Supreme Court” whose “Judges…shall hold their Offices during good Behavior.” Article II provides that these “Judges” of the Supreme Court shall be appointed by the nation’s politician-in-chief, the President, and confirmed (or not) by the politicians who sit in the US Senate.

Reflecting its political nature, the Court has often played a controversial role in the nation’s affairs. The Court’s ‘Dred Scott’ decision, for example, exacerbated the regional tensions which culminated in Abraham Lincoln’s election to the Presidency and the Civil War.

But the Court is also the repository of our deeply-held commitment to the rule of law. As I explained when I supported the confirmation of the Democratic liberal Sotomayor after favoring the confirmation of the Republican conservative Alito:

Courts are where Americans go for the fair, principled application of law administered by a judge who is guided, not by the identity of the parties, but by legal norms and standards. All too often, the reality falls short of this ideal. Nevertheless, this ideal is an important part of America’s self-image and of our success as a nation: We believe in the rule of law. Our judges should thus be more than partisans. They should be legal professionals in the best sense of that term, knowledgeable, hardworking craftsmen who seek to administer the law in a fair and principled fashion. This commitment to professionalism should start with the judges at the pinnacle of the legal system.

This was true when President Obama appointed then-judge Sotomayor to the nation’s highest court. It is if anything, even more true today.

The relevant question in such an environment is whether the president has selected a nominee of professional distinction, one whose credentials and demeanor reinforce the rule of law.

Given the political role of the Court, a President and Senate of the same party will appoint and confirm a justice acceptable to the main interests of that party. Thus, when President Obama served with a Democratic Senate and President Bush served with a Republican Senate, their nominees to the Court were going to be compatible to the major elements of their respective parties. So too today, President Trump with a Republican Senate will place on the Supreme Court a justice acceptable to important Republican interest groups.

In such an environment, rule-of-law considerations come to the fore and the relevant question becomes the professional credentials of the nominee. Judge Gorsuch’s credentials comfortably qualify him to sit on the nation’s highest court.

This does not mean that I agree with every decision Judge Gorsuch has made or is likely to make – just as I have not agreed with every decision of Justices Sotomayor and Alito. In light of their ideological differences, it would not be possible (or desirable) to agree with every decision of these two justices with different judicial philosophies.

The question today is whether, from the group of politically realistic nominees, Judge Gorsuch brings to the Court the professional qualifications which reinforce the rule of law. He does, as did then-judges Alito and Sotomayor.

Many distinguished observers find this emphasis on professional credentials, rather than judicial philosophy, unpersuasive. Indeed, these observers would suggest that my focus on professional credentials is naive.

I suggest that it is these observers who are naive. A Republican president with a Republican Senate is going to place on the Court a conservative nominee, just as President Obama and a Democratic Senate placed on the Court two liberals, Justices Sotomayor and Kagan. The relevant question in such an environment is whether, from among the pool of politically realistic nominees, the president has selected a nominee of professional distinction, one whose credentials and demeanor reinforce the rule of law. Judge Gorsuch – like Justices Sotomayor, Alito and Kagan – passes that test, and thus should be confirmed to the Supreme Court.

Featured image credit: The inside of the United States Supreme Court by Phil Roeder. CC-BY-2.0 via Wikimedia Commons.

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