In my naive youth, I thought that when it comes to appointing a SCOTUS justice, the idea was to find the best moderate jurist in the land, and let him or her grow into the job. One of the best examples of this is John Paul Stevens, nominated by Gerald Ford. Stevens eventually became a liberal stalwart as this editorial describes.
But in the past few decades, this idea has become subverted. Today, the game is to nominate the most extreme candidate that can be navigated through the Senate. This game is played by both parties, and the result is that the court has taken on a distinctly partisan character, rather than that of a deliberative body that has the best interests of the nation as a whole in mind. This is something the founding fathers neither anticipated nor intended. As long as this partisan approach prevails, the very nature of our democracy could be determined by a pair of untimely heart attacks.
Is there a way out of this polarizing of the court? My fear is that as long as Republican presidents (This will happen occasionally, unfortunately.) are chosen by the Extreme Right Wing (ERW) of that party, we will have a blatantly partisan court. If they get to choose more and more members of the court (6-3? -- 7-2?), it seems likely that Roe v Wade would be overturned. Marriage equality could easily go by the wayside. There is scarcely a single law that might not be overturned -- or upheld -- by a court with a partisan agenda.
The constitutionality of the progressive income tax could be questioned on the grounds of "equal protection", could it not? Do you suppose a Republican SCOTUS would not dare to make such a ruling? I direct your attention to Citizens United.
There could even be a decision to declare the USA a Christian nation with citizen rights dependent on one's professed religion. There are scads of ERW nuts who would be willing to sign on to this one. The Constitution, after all, is what SCOTUS says it is. How many times have you heard the following line parrotted? "The First Amendment guarantees freedom of religion, not freedom from religion." Do you believe that an ERW SCOTUS could never make such a ruling? Just listen to the campaign rhetoric. The right to oppress women is being advanced as a "religious freedom" issue. Is this not eerily reminiscent of corporate money being equated to "free speech"? Listen to the ERW; they mean what they say.
After Citizens United, and the decision we all fear and more or less expect in the current ACA case, we could be on a slippery slope towards ERW hegemony, with the Constitution effectively rewritten by the likes of Gingrich, Santorum, Bachmann, Palin, Limbaugh, and their ilk. Keep in mind the above admonition: The Constitution is what SCOTUS says it is.
If Romney were to prevail in November, he would doubtless be a captive of the ERW, to which he owes his current political fortunes, and to which he now panders relentlessly without a twitch of political integrity.
At the root of the matter is money. The ERW has one principle that overrides all others: The money of the moneyed class must be protected at all cost. The Republican five of SCOTUS, showed that in the shameless -- and shameful -- Citizens United ruling.
We Democrats must keep the White House in order to keep SCOTUS out of the hands of the ERW. The two major parties ought to come to a firm agreement that every SCOTUS nominee should be the best middle-of-the-road jurist to be found in the court system. It seems clear that this is what the framers of the Contitution intended, and that this is what would be good for the country. If this had been done in good faith in 1991, we would not have Clarence Thomas as a justice.
Allow me to digress with this observation: The nomination of Thomas by the senior Bush came when Thomas was barely 43 years old. At that time he had only 16 months experience as a judge, having spent most of his career as a political hack. If this judgement seems harsh, read his biography on Wikw. (I am not an expert, but I would guess that an apprentice plumber needs more that 16 months to become a journeyman.) His most advantageous qualifications are his extreme conservatism and his age, which virtually guarantees a very long tenure.
The two major parties could agree, for example, that an
ad hoc Senate committee be formed whenever there was a SCOTUS vacancy. The committee would be formed of a proportional number of Senators of each party with the most bipartisan voting records. (How to determine this? There are watchdog groups that could help.) They would prepare a slate of perhaps 10 candidates, from which the President would make his or her choice. Confirmation would generally be a formality. None of this would require amending the Constitution.
This is only one way; there must be others. Some way, somehow, we must find a way out of the present partisan dilemma. Imperfect as this proposal might be, I think it would be better than what we have at present. The fundamental nature of our democracy could be permanently altered if the ERW gains permanent control of SCOTUS. If you doubt this, Google "dominionism".
We must prevent this. SCOTUS literally has the power and authority to transform our form of government, for better or worse.