Saturday, April 10, 2010

Watch out Obama -- don't let your boy be "borked!"

I will attempt to not have similar topics in consecutive posts, but the announced retirement of Supreme Court Justice John Paul Stevens is too important of a topic to ignore.  Although some readers may wonder why the mining incident in West Virginia hasn't made the blog yet, I have concluded it is too soon to effectively comment on this because not even time has lapsed yet to properly digest the issue.

Justice Stevens will be 90 years old when he retires from the bench this summer and will have endured through seven different presidencies and three different chief justices.  He will have spent nearly 35 years on the Court and has provided a liberal flavor (probably closer to a populist in my opinion) to the Court despite being appointed by President Gerald Ford.  Most political scientists tend to believe him to be a "wildcard" in voting, which is evidenced by many of his decisions.

Known as a liberal in his opinions on Fourth Amendment issues, Stevens sided with the majority in overruling a temporary moratorium on the death penalty in the United States (re: Gregg v. Georgia).  Stevens also dissented in Texas v. Johnson, believing the burning of the American flag in protest should not be protected by the First Amendment.  Perhaps his most scathing words were noted in the highly controversial case Bush v. Gore, where he sided with the minority, believing the Florida state courts should be allowed to determine that controvery for the sake of maintaining a balance in federalism.  He stated in his opinion,
"Although we may never know with complete certainty the identity of this year's presidential election, the identity of the loser is perfectly clear.  It is the nation's confidence in the judge as impartial guardian of the law."
Though the Court is losing an experienced and fair justice, the situation becomes more intense than usual because of the current political polarization that exists between parties.  The responsibility for selecting a new justice falls with President Obama, however his choice must receive a confirmation by the Senate through a simple majority vote.  This is somewhat misleading because there tends to be nothing simple about the confirmation process in recent years.

Before the latter part of the 20th century, Supreme Court nominations and other federal judiciary appointees were confirmed unless some radical problem were discovered.  Now, however, appointees come under the most severe scrutiny.  The president's choice to fill a vacancy is thrust into the political fracas via having to appear before the Senate Judiciary Committee and answer numerous questions pertaining mostly to judicial philosphy, but personal matters also are fair game.  While this used to be a mere formality, the questioning process can be drawn out for weeks or even months, causing a disruption in the business of all three branches of our government. 

The nomination process received its most notable change in 1987, when President Ronald Reagan tapped Robert Bork to fill a spot on the Supreme Court's roster.  His resume was solid, having served as solicitor general, attorney general, and a judge on the Circuit Court of Appeals.  Democrats, frustrated with the conservative policies of a soon to be outgoing president, made a concerted effort to block whomever Reagan appointed to the Court.

The process of "rubber stamping" an appointment from the president were over.  The late Senator Ted Kennedy led the charge, exaggerating Bork's positions to the point of absurdity, stating,
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy... No justice would be better than this injustice."
Democrats went so far as to have television ads (narrated by Gregory Peck, no less) undermine any chance of a fair shake Bork had.  An ultimate insult was added to Bork's injured reputation when an investigation into his video rentals was leaked to the press.

Former senator and current vice-president, Joe Biden, was head of the Senate Judiciary Committee at the time and mentioned Kennedy's rant "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility." 

The Senate bombarded the public and Bork, resulting in his ultimate rejection, 42 votes in favor, 58 against.  His name has become immortalized in political science terminology.  When one is treated unfairly in the nomination process, the phrase being "borked" is applied.  Probably not the way Bork wanted to be remembered. 

Looking at the current makeup of the Supreme Court, it should be noted that Justices Ginsburg, Stevens, Kennedy, Scalia, and Breyer collectively had only 12 votes against them in the confirmation from the Senate.  The most recent three appointees, Justices Roberts, Alito and Sotomayor, were confirmed by votes of 78-22, 58-42, and 68-31 (respectively).  What does it all mean?  The confirmation process has become highly politicized.

President Obama faces a difficult task in appointing a new justice to the Court.  Republicans may attempt to block, or at the very least, stall the process.  Recent developments in the Obama administration, namely healthcare reform and stimulus spending, may have pushed conservatives over the proverbial edge.  President Obama would be wise to learn from the mistakes of his predecessor, who attempted to garner support from women in appointing Harriet Miers to a vacant seat on the Court in 2005.  Miers was not even close to being qualified, never having served as a judge and being seen in certain judicial circles as lacking the academic abilities needed as a justice.  She ultimately withdrew her name from consideration.

Recent news stories report the president's top choice for the spot, Dawn Johnson, has withdrawn her name from any talk of a spot on the nation's top court.  She is known for being an outspoken support of abortion rights and a critic of former President George Bush's handling of captured terrorists.  Johnson probably realized her liberal nature would most definitely cause Republicans to revolt. 

The president has a difficult choice ahead of him.  Democrats will push for a liberal justice to replace Stevens and Republicans will oppose any such nomination.  Could a filibuster of the nomination result?  Will Democrats threaten to use the "nuclear option" that was nearly brought out in 2005?  The possibility also exists that Republicans will use the same tactic once aimed at them.  Perhaps we will see another appointee be "borked."  This would be a sad case, indeed. 

Our politicians are doing an excellent job at destroying a process designed by the Founding Fathers to block only the most objectionable of men (or women) to a judicial post (check out Federalist No. 76 for further detail).  Republicans may even add on to what Democrats have done in the past.  In hoping for gains in Congress this November, they could try to block any nomination to the Court until more Republicans have been elected, leveraging the president for more input into the new selection for the Supreme Court.


  1. Another though-provoking and stimulating post -- thanks! I have been aware of my failure in recent years to stay tuned in to current events, but this Supreme Court news I had heard about, and thank you again for elaborating and providing interesting background and history for the current situation. Even if some of that background is disappointing, it is worth knowing. Kudos to Cincinnatus! :)

  2. The likelihood of it happening is obviously extremely low but say, for some reason, 5 justices leave at once, and say it was the February after Obama's inauguration when 69% of the country was still on Team Edward and Team Obama. If all the Dems in the Senate were united, there would've been no filibuster possible for Obama's 5 nominations, so theoretically he could have put 5 Michael Moores on the Supreme Court, and then the 3 "separated powers" are 100% leftist.

    The purpose of separated powers is to prevent one person from becoming too powerful but also to keep a mob from becoming too powerful. This process of selecting justices is clearly inadequate considering the times. What about an election sort of process to where the president picks 5 nominees, and they have to go through debates and questioning from the Senate, but only in a certain timeframe i.e. 1 month? That may be slightly vague and probably unattainable but my point is, the politicians themselves are not going to change. They are going to continue to be loyal ideologues to their party and vote in whatever manner will assist them in moving up in the two (soon to be three) severely polarized parties that we now have. I say the answer is selection process reform.