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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.

Originally posted to SaoMagnifico on Sat Mar 31, 2012 at 05:15 PM PDT.

Also republished by Community Spotlight.

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Comment Preferences

  •  A respectful opposing viewpoint... (4+ / 0-)

    As you point out, the Justices on the Court make little effort to hide their Partisan affiliations. Since the sober, respectful, deliberative, 60 votes required process hasn't eliminated partisanship from the bench, wouldn't it make more sense to eliminate the filibuster entirely and at least eliminate the wasted time for both sides?

    •  I think that... (6+ / 0-)

      ...the Diarist is saying that the minority party should filibuster more often.

      If the minority party filibustered more nominees -- even competent ones -- based on ideology, then the President would be forced to quit nominating ideologues.

      •  Yes, precisely. (2+ / 0-)
        Recommended by:
        phonegery, MichaelNY

        Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

        by SaoMagnifico on Sat Mar 31, 2012 at 06:45:54 PM PDT

        [ Parent ]

        •  Sao - two highly partisan Justices (4+ / 0-)

          received very high votes when the Senate was more collegial. Scalia was confirmed by unanimous consent and Ginsberg, a former general counsel of the ACLU, won 96 votes. I doubt either could be confirmed today.

          "let's talk about that"

          by VClib on Sat Mar 31, 2012 at 07:25:00 PM PDT

          [ Parent ]

          •  What we're working with now, though... (0+ / 0-)

            Is a Senate that is much more divided. And we're likely to be working with that sort of political climate for a while yet.

            We might as well take advantage of the perks. Especially when lifetime appointments are at issue.

            Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

            by SaoMagnifico on Sat Mar 31, 2012 at 07:49:34 PM PDT

            [ Parent ]

            •  Sao - so you would think it was appropriate (1+ / 0-)
              Recommended by:
              Jerry J

              if the GOP blocked any liberal Obama would nominate to replace Ginsberg when she retires?

              "let's talk about that"

              by VClib on Sat Mar 31, 2012 at 08:27:31 PM PDT

              [ Parent ]

              •  I don't like the idea... (2+ / 0-)
                Recommended by:
                VClib, Australian2

                Of "liberals" and "conservatives" on the court. I do believe in the progressive drift of this country; I believe we have moved socially leftward since our founding and that we will continue to do so. And I favor jurists who recognize that expanding liberties for Americans is a fundamental value of our country. I don't want to see decisions like Roe v. Wade overturned, because I believe in more freedom, not less.

                But I don't like the idea that a liberal's seat becomes vacant, therefore a liberal must be appointed. I believe an open-minded, fair, thoughtful, and intellectually independent jurist should be named to the court whenever a vacancy arises. Staunch partisanship should be an automatic disqualifier. If a Justice Alito wants to shape laws to the liking of the Republican Party, he should run for office as a Republican. If a Justice Ginsburg wants to do the same in favor of the Democratic Party, she should run for office as a Democrat.

                Then again, if you're Justice Thomas, you can be a Republican political activist and a Supreme Court justice, and no one can or will do anything about it. So, there's that, I suppose, if you're morally and ethically bankrupt.

                Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

                by SaoMagnifico on Sat Mar 31, 2012 at 08:42:01 PM PDT

                [ Parent ]

  •  Tiny Nit, We Do Know How Many FL Votes Were (6+ / 0-)

    cast for Gore. A coalition of reporters, some time after the decision, did several different kinds of recounts (different percentages of ballots recounted) they all generated solid numbers.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat Mar 31, 2012 at 06:22:46 PM PDT

  •  You say Gore won the popular vote nationwide (4+ / 0-)

    it is probably worth adding that a consortium of news sources counted the ballots under different recount scenarios and Gore would have won then too. Bush would have won only if a few select areas were recounted, which was Gore's first step, but probably not his last had they actually been allowed to use the state law to decide the election.

    I would have to look it up, but I believe Gore won 5/7 scenarios with a limited recount of a few select counties favoring Bush along with another limited scenario. Gore rightfully won the 2000 election, but the Supreme Court appointed Bush.

    I like Gore's post-election work, but I'm not a huge fan of his overall political philosophy. He won the election.

    •  My point is that in Bush v. Gore... (1+ / 0-)
      Recommended by:
      MichaelNY

      Partisan preferences took precedent over law in the justices' decisions. They were less concerned about interpreting the law appropriately than they were about finding in favor of their preferred political party.

      I do tend to think that if the Supreme Court hadn't stopped the recount, which I believe Vice President Gore had every right to as the "losing" candidate in an extremely close race, then-Gov. Bush would have never been certified president-elect.

      Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

      by SaoMagnifico on Sat Mar 31, 2012 at 06:54:37 PM PDT

      [ Parent ]

    •  I think that is incorrect (0+ / 0-)

      I could be wrong, but I thought that consortium decided in favor of Bush.

      I'll try to find some links.

    •  Here's something (0+ / 0-)

      I see where this is just a recount of the disputed votes.  I never heard of a recount of the entire state.

      Newspapers' recount of Florida 'undervotes' confirms Bush victory

      If a recount of Florida's disputed votes in last year's close presidential election had been allowed to proceed by the U.S. Supreme Court, Republican George W. Bush still would have won the White House, two newspapers reported Wednesday.

      The Miami Herald and USA Today conducted a comprehensive review of 64,248 "undercounted" ballots in Florida's 67 counties that ended last month.

      Their count showed that Bush's razor-thin margin of 537 votes -- certified in December by the Florida Secretary of State's office -- would have tripled to 1,655 votes if counted according to standards advocated by his Democratic rival, former Vice President Al Gore.

    •  and.. this.. (0+ / 0-)

      This one mentions the full state recount that Gore never requested and that he would have won (possibly).

      The Florida Recount of 2000

      According to a massive months-long study commissioned by eight news organizations in 2001, George W. Bush probably still would have won even if the U.S. Supreme Court had allowed a limited statewide recount to go forward as ordered by Florida’s highest court.

      Bush also probably would have won had the state conducted the limited recount of only four heavily Democratic counties that Al Gore asked for, the study found.

      On the other hand, the study also found that Gore probably would have won, by a range of 42 to 171 votes out of 6 million cast, had there been a broad recount of all disputed ballots statewide. However, Gore never asked for such a recount. The Florida Supreme Court ordered only a recount of so-called "undervotes," about 62,000 ballots where voting machines didn’t detect any vote for a presidential candidate.

      •  That's why I said it was his first step (2+ / 0-)
        Recommended by:
        Jerry J, MichaelNY

        It's unlikely that if actually trying to fight for the election he wouldn't have asked for wider recounts. The one you highlight is what I was talking about. The Wikipedia article had a decent rundown of the different scenarios. By the standards laid out in FL law Gore would have won, but Gore's initial recount request would have resulted in Bush if they stopped with those few counties.

        Counting all the ballots as laid out in Florida law results in a Gore win. It's irrelevant though, there have been hundreds of self-made disasters in the U.S. since then.  

  •  However, you have not considered (2+ / 0-)
    Recommended by:
    bear83, Simplify

    the impact of a deliberately obstructionist minority party. If Obama were to nominate Jesus Christ himself the Republicans would still block the nomination simply to make Obama look bad.  We could go a Presidents entire term and never let him or her nominate someone, ending up with a Supreme Court unable to function just as the Rebublicans tried to stop the Consumer protection nomination, many labor relations board nominations, etc.  I don't think the answer is more votes required, but perhaps a term limit on the Court.   And Clarence Thomas's actions should be met with impeachment proceedings.

    Go Bernie Sanders! You are what a politician should be!

    by Former Chicagoan Now Angeleno on Sat Mar 31, 2012 at 08:22:12 PM PDT

    •  I don't think so, to your first point (1+ / 0-)

      My opinion of Justice Thomas frankly couldn't be lower; the man was horrendously unqualified and behaved abominably during confirmation hearings, he's a dead weight who displays not even the appearance of intellectual curiosity, and his wife's conduct is completely unprofessional and unbecoming.

      But as to your main point, then-Judge Sotomayor actually received well over 60 votes for confirmation (contrary to popular belief, Justice Sotomayor is the more moderate and independent-minded of President Obama's two appointees). The likes of Judge Merrick Garland, former Georgia Chief Justice Leah Ward Sears, and Judge Sidney Thomas, all jurists with reasonably progressive views who have nevertheless demonstrated a willingness to consider alternate interpretations of the law and enter proceedings with an open mind, would undoubtedly be confirmed even with 47 Republicans in the Senate.

      Maybe I don't know enough to judge (no pun intended) either potential nominee, but even if the likes of a Judge Diane Wood or a Pamela Karlan line up with my political views (and I am unashamed to admit that I am a liberal man who votes straight-ticket Democratic), if they are the type of jurist who will approach every issue that is remotely political with their mind already made up, then maybe they shouldn't be interpreting the law; maybe they should be making it in Congress or a state legislature instead.

      I'd prefer someone like Garland, Sears, or Sidney Thomas. Even if they take votes that I don't agree with sometimes, at least I will never feel like they would fit in better sitting behind Sen. Reid or Rep. Pelosi than they would on the supposedly independent and objective arbiter of constitutionality across the street from the Capitol's east face.

      Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

      by SaoMagnifico on Sat Mar 31, 2012 at 08:35:03 PM PDT

      [ Parent ]

  •  There is no shortage of judicial filibusters (2+ / 0-)
    Recommended by:
    bear83, Simplify

    they are a Republican speciality, however, for the simple reason that Republicans don't care about having a functioning judiciary. Democrats rarely filibuster legislation or judicial nominees because they are concerned about having a functioning government.  i
     

    "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

    by Alice in Florida on Sat Mar 31, 2012 at 08:37:14 PM PDT

    •  While I am a proud Democrat... (2+ / 0-)

      The statistics from the Bush administration don't really bear out the notion that Republicans are the only ones who filibuster nominees. They're just more shameless about it.

      As a caveat to my postings here, I don't believe it's appropriate to filibuster qualified and competent nominees just to make a political point. And I do think the filibuster is grossly overused. But when it comes to making lifetime judicial appointments, I think the use of the filibuster is unjustly stigmatized. The Senate should absolutely exercise discretion in confirming a nominee to the Supreme Court. And Republicans should stop filibustering the assistant deputy undersecretary for salmon runs just to needle the president for inveighing against the Inhofe-Hensarling Protect Our Children From Gay Imams Act of 2012.

      Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

      by SaoMagnifico on Sat Mar 31, 2012 at 08:49:46 PM PDT

      [ Parent ]

  •  Alternative suggestion (0+ / 0-)

    First of all, this is an excellent diary, and I appreciate your remarks and point of view.

    What would you think of eliminating the filibuster but amending the Constitution to limit Supreme Court justices to an initial 10- or 15-year term, with the Senate having the prerogative to vote up or down on additional 10-year terms?

    Formerly Pan on Swing State Project

    by MichaelNY on Sat Mar 31, 2012 at 11:15:51 PM PDT

    •  I don't think it would solve the problem (1+ / 0-)

      A court can really make some sweeping calls in 10 or 15 years. And that would give the president, if the Senate was of the same party, vast and virtually unchecked power to name whoever he wanted to the court for that length of time, and then give even a bare majority in the Senate vast and unchecked power when it came time to re-up on each justice's term.

      Democrat, OR-01 native, Swingnut for life, and keeper of the DKE glossary.

      by SaoMagnifico on Sat Mar 31, 2012 at 11:27:32 PM PDT

      [ Parent ]

  •  We get the government we vote for. (0+ / 0-)

    The American electorate is split and there is very little common ground. How can elected officials agree on anything when the people electing them demand they don't? Why is anyone surprised when this partisanship then extends to appointments to the Supreme Court?

    Any election that came as close as 2000 was essentially going to be decided by the interpretation (hanging chads, implied intent, etc.) of the vote counters. In other words, the difference was less than the uncertainty, a bad situation for an election. I hope that 2012 will not be nearly as close.

    I voted with my feet. Good Bye and Good Luck America!!

    by shann on Sun Apr 01, 2012 at 06:22:07 AM PDT

  •  I Agree (3+ / 0-)
    Recommended by:
    SaoMagnifico, Simplify, MichaelNY

    I agree with your basic premise, even as I don't see the point of the filibuster for legislation.  Legislation can be undone after an election or some other kind of reckoning.  It's next to impossible to unseat a Supreme Court justice.  I actually wonder if it wouldn't be more effective to simply require 60 votes (or even a super-majority of 67) for justices rather than to rely on the optional filibuster.  That would encourage nominations that have broad support and close the door to accusations of excessive partisanship when the filibuster is invoked.

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