Tuesday, June 29, 2010

The Politics of SCOTUS Confirmation Hearings

I've often wondered at the political impacts of SCOTUS hearings on the legal propensities of SCOTUS nominees. What we most often see in these hearings are, on the one hand, Democrats lining up to grill, criticize, and oppose Republican presidential nominees to the court and, on the other hand, Republicans lining up to grill, criticize, and oppose Democratic presidential nominees. I guess that makes logical sense at one level, but it entrenches a kind of politicized outcome at another level. What I mean is that, given the way nominees by one ideological wing of our political system are treated by the other ideological wing in the confirmation process, it is no wonder that these nominees may end up falling out in favor of court decisions that line up with that wing that made it possible for them to be in the SCOTUS in the first place. All the rhetoric of judicial neutrality notwithstanding, it's only human and only natural for someone to want to lean towards pleasing those who believe in them, compliment their competency and abilities, and support them. Likewise, it is only human and only natural for someone to want to lean against those who criticize them, publicly question their worthiness and competency to be a good judge, and oppose them. Thus, the confirmation process only seals and cements a kind of ideological non-neutrality that everyone claims to be against. It seems to me that it would behoove Senators to abandon partisanship in SCOTUS nominee hearings and give respectful due deference to nominees in order to ensure the impartiality that they seem to so desire. I say this because I think Republican tactics and strategies to mount an opposition to Elena Kagan are only likely to push Kagan, who seems to be the most moderate choice they're likely to get from a Democratic President, towards a more leftist judicial philosophy. Why would they want to shoot themselves in the foot that way?


Ricardo said...

I find it interesting that the Republicans are setting themselves up to have to defend their attacks on Thurgood Marshal and by extension Brown vs Board of Education. This man was Solicitor General for the United States who won 29 of 32 cases before the SCOTUS before being confirmed for the court itself. Knuckleheads.

eric said...

Well, there's no way to know whether it actually works that way or not, but I will say that a SC Justice who is personally influenced by the political forces you describe is neglectful of their duty and should be impeached, even though that will never happen.

In otherwords, I see your point, and I don't really enjoy the political grandstanding of Senate Confirmation Hearings either, but if the integrity of the people who are being appointed as SC Judges is really that thin, we are screwed no matter what the Senate does.

Huck said...

Eric - That's an excellent point, and one that I did think of, too. You are right about it. I happen to think that SCOTUS nominees probably view the whole confirmation process as political theatre and thus it probably has very little influence over their judicial decisions, especially as the confirmation battle scars soften over time. But, still, they're human beings, and I can't help but imagine that they'll be affected by it in some way that conditions how they think about things. Perhaps it just confirms more deeply what they already believe and where they already stand; perhaps it raises their threshhold a bit for being persuaded by the arguments of the other side. I just think that the confirmation process must have some residual effect. For instance, if I were Clarence Thomas, I'd still be pissed at what the Democrats tried to do with my reputation over the whole Anita Hill thing.

eric said...

"For instance, if I were Clarence Thomas, I'd still be pissed at what the Democrats tried to do with my reputation over the whole Anita Hill thing."

Absolutely, but there is a huge gulf between that and actually forming a legal opinion that affects millions of Americans based on that animosity. In fact, we should rightfully expect the type of mind that would find itself on the Supreme Court to look at a legal opinion they are prepared to render and pause to ask themselves, "Have I allowed any animosity or personal issues to influence my thinking here?"

In otherwords, yes, they are human, but by virtue of their position and training they should be expected to raise above crass politics and personal vendettas, and in fact our justice system can't work properly unless they do this.