In the aftermath of another politically charged week of Supreme Court arguments, there seems to be some reason to wonder why we don't just give up the ghost and list (D) or (R) after the name of each high court justice.
On the court's liberal wing, Justices Stephen Breyer and Ruth Bader Ginsburg made little effort to disguise their efforts to boost Solicitor General Donald Verrelli, Jr., by stepping in and articulating arguments in favor of the Obama administration's health care law when Verrelli stumbled.
Meanwhile, conservative Justice Antonin Scalia chortled with barely concealed glee over the prospect of overturning the entire law based on the disputed constitutionality of the individual insurance mandate. Justice Clarence Thomas, a fellow conservative whose wife has actively campaigned against the law and donated money to activist groups opposing it, maintained his characteristic silence during verbal arguments -- yet his ultimate vote is not remotely in question.
There is little doubt the eventual decision in the case will be a 5-4 ruling in one direction or the other. And there is little doubt that the swing vote will belong to Justice Anthony Kennedy, the least reflexively conservative of the court's five conservative justices.
This is not a one-off phenomenon.
We saw this same kind of overt partisanship in the Citizens United decision, wherein Kennedy inveighed (naively or disingenuously) in favor of the ruling allowing unlimited money from anonymous donors into the political arena by arguing that because of some nominal "non-coordination" rules nominally imposed by the court, candidates whose unnamed supporters had more money to spend than their rivals somehow would not grossly benefit from that wealth.
At the start of the previous decade, we saw it in the Bush v. Gore decision, in which the court's conservative majority ruled in favor of conservative then-Gov. George W. Bush, R-Texas, to end a recount in Florida, the state then governed by Bush's younger brother where then-Vice President Al Gore (who won the popular vote nationwide) alleged widespread voting irregularities.
Because of the Bush v. Gore decision, we will never know exactly how many ballots were properly cast for Bush and how many ballots were properly cast for Gore in Florida. Bush's ensuing two-term presidency saw the appointment of two young conservative justices to the court, including Chief Justice John Roberts.
Why is it so easy to label each justice as "liberal" or "conservative"? Part of it is the inherently partisan nature of their appointments. Presidents are partisan figures, and it is the president who nominates each justice. The Senate, itself a partisan body, votes to confirm or reject the nominee.
When the same party controls the White House and Senate, as they were when Roberts and Justice Samuel Alito were nominated, confirmations are difficult to derail. Only opposition from the ranks of Senate Republicans derailed the confirmation of White House counsel Harriet Miers to the court in 2005, and they objected primarily based on Miers's lack of a strongly conservative paper trail.
But in recent years, most Senate votes have not operated on an up-or-down basis.
Only in rare cases does a single party control 60 or more votes in the Senate. The Democratic Party had 60 senators in the chamber for several months during the 111th Congress, in between the defection of then-Sen. Arlen Specter, R-Pa., to the Democratic Party and the special election of Sen. Scott Brown, R-Mass., to fill out the unexpired term of a Democratic lawmaker. Prior to that, no party had held such a supermajority since 1979.
Yet despite the Senate holding the constitutional right to advise and consent to the president's judicial nominees, the judicial filibuster has been vilified.
Enough Democrats were outraged by members of their party's liberal wing attempting to filibuster the nomination of then-Judge Samuel Alito to the court in 2006 that the rock-ribbed conservative received 19 Democratic votes for cloture. Of those Democrats, 15 then immediately turned around and voted against Alito's confirmation.
I have seen good government types defend (on the right) or concede (on the left) Alito to have been worthy of confirmation despite the fact that he has, throughout his judicial career, been a predictable and unswerving vote for the position favored by Republicans. Their argument typically goes as follows: Alito may be very conservative, but his intelligence and his years of experience as a jurist qualified him for a spot on the Supreme Court, and it was the prerogative of then-President Bush, a conservative Republican, to appoint a conservative to the court.
But if we are giving presidents the right to appoint the blithest of partisans to the court by virtue of their office, maybe we should reevaluate what qualifications we believe are necessary in a Supreme Court justice.
There are lots of intelligent people in the country. There are lots of intelligent lawyers, justices and counselors who know a lot about the law and can eloquently defend positions they hold by citing it.
Likewise, there are lots of people in the legal profession who have been doing what they do at a very high level for a long time.
Alito was held up as qualified because he was a longtime judge, hot on the heels of Miers's dismissal as a legal novice and lightweight. Many Democrats argued that while they disagreed with Alito on virtually everything, they had to allow him to take up the mantle of a justice because he was a practiced jurist.
As a result, Senate Democrats, who could have blocked Alito's confirmation and insisted on a nominee who actually appeared to give some consideration to not voting without reservations as a conservative on virtually every judicial issue carrying a whiff of politics to it, abdicated their constitutional right. They allowed Alito, an ideologue, to be rubber-stamped by the Senate's Republican majority.
The minority party in the Senate, whichever party it is and whatever party the president belongs to at any given time, should demand better.
It is not acceptable to have a Supreme Court divided sharply along predictable partisan lines. It is not acceptable that the highest court in the land, conceived by our Founders as a neutral arbiter of within what bounds the government must operate, should function as a battlefield a la Congress for spats between political parties.
We should stop acting as though it is a mortal sin to require 60 votes to confirm a Supreme Court justice. These appointments are for life, and the matters they decide can, have and will transform the country. It is eminently reasonable to insist our justices be fair-minded, deep-thinking and non-partisan in their approach to the law.
After all, if we simply accept the premise that party leaders should get to stack the highest court in the land with political appointees, why not get rid of the Supreme Court altogether and hand the job of deciding what passes legal muster to Congress, the body that writes the laws? Seems Congress has enough lawyers sitting in either chamber that it could get the job done, and as long as the court remains as divided and partisan as it is, I can't imagine the overall effect would be much different.