Supreme Court Chief Justice John Roberts seems to be increasingly concerned about his legacy, what the Roberts Court will look like to subsequent generations. He's gifted the right wing in Citizens United and Hobby Lobby but moderated on Obamacare and marriage equality. While the Roberts court has easily been among the most politicized of all, Roberts doesn't it want it to be remembered that way. That's part of what was behind Roberts' criticism of the confirmation process ten days before Justice Scalia's death.
It was not long ago that qualified nominees coasted onto the court, Chief Justice Roberts said last month. In 1986, Justice Scalia was confirmed by a vote of 98 to 0. In 1993, Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3.
These days, Chief Justice Roberts said, "the process is not functioning very well." […]
"Look at my more recent colleagues, all extremely well qualified for the court," Chief Justice Roberts said, "and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn't make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees." […]
"When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms," he said. "If the Democrats and Republicans have been fighting so fiercely about whether you're going to be confirmed, it's natural for some member of the public to think, well, you must be identified in a particular way as a result of that process."
"We don't work as Democrats or Republicans," the chief justice said, "and I think it's a very unfortunate impression the public might get from the confirmation process."
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Or they might get that impression from decisions handed down, if they're paying attention. The unearthing of this speech has people speculating that Roberts might speak up in the case of Merrick Garland, which wouldn't out of the question. "It's the chief justice’s job to guard the institutional integrity of the court," says Barry Friedman, a law professor at New York University. "It would be appropriate for the chief justice to remind the coordinate branch of government that they are leaving the Supreme Court in an awkward state for a couple of terms if they don't act."
But would it make a difference with Mitch McConnell? Probably not. He's got his marching orders from extreme right groups. Roberts is viewed as a traitor, anyway, because he had the power to destroy Obamacare and didn't. If he does speak up, expect his words to do very little to break the blockade.