Will Partisan Politics Infect the Supreme Court?

 

Justice Ruth Bader Ginsburg has unleashed a torrent of commentary in the wake of her comments about presumptive Republican nominee Donald Trump:

 

"I can't imagine what this place would be — I can't imagine what the country would be — with Donald Trump as our president," she said. "For the country, it could be four years. For the court, it could be — I don't even want to contemplate that."

 

Given the opportunity to dial back those comments in The New York Times, she reinforced them, telling CNN: "He's a faker. ... He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

 

Trump, as usual, quickly fired back on Twitter, declaring, "Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot — resign!"

 

I have long admired Ginsburg, but it seems self-evident that her comments in this case crossed the line. We expect the judicial branch of government and particularly its highest court to remain above partisan politics. As those politics have become more and more polarizing and increasingly ugly, it is all the more critical that the members of the Supreme Court protect their ability to impartially apply the law and defend their credibility and the integrity of the Supreme Court itself.

 

Ginsburg, herself, in a USA Today interview in 2011, stated, "What I care most about I think most of my colleagues do, too ... is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government."

 

But the widely esteemed Ginsburg's momentary transgressions are far from the most serious threat that would infect the court's future with partisan politics.

Republicans in the Senate — within moments of the death of former Justice Antonin Scalia — declared in a bald-faced act of partisanship that they would block any nominee whom President Obama might put forward.

 

Trump, who is now outraged by Ginsburg's audacity, accuses her of endangering the court's reputation. But within hours of Scalia's death, he was injecting presidential politics into the selection of a new justice. Trump declared, "I think it's up to [Republican Senate Majority Leader] Mitch McConnell and everybody else to stop it — it's called delay, delay, delay."

 

Remember, this was 10 months before Obama is scheduled to leave office and occurred before he had even nominated anyone.

 

Somewhat obscured by the sideshow that this year's presidential election has become is how successful the Republican strategy has been. They have refused to even hold hearings on nominee Merrick Garland and many of them refused him the traditional courtesy meetings. As they suspected it would, the controversy of the GOP majority's refusal to meet their constitutional obligation has faded from public attention. They were counting on that.

 

Republicans may pay a price, in November, in a number of competitive Senate election races. But it seems clear that Garland will not be confirmed prior to the election.

 

It is easy to see how this precedent of denying a president even a fair consideration of his/her constitutionally mandated nomination deepens the politicization of the selection process along partisan fault lines. And it may get worse.

 

If Trump is elected president, would a Democratic majority in the Senate, or even a Democratic minority (using the filibuster), easily confirm any nomination he made, which they would likely view as usurping Obama's rightful powers?

 

And if Hillary Clinton is the next president, if she selects her own nominee — perhaps more progressive than Garland — will the Senate GOP let that happen?

 

This vicious spiral could draw the court further and further into a web of polarized partisan politics.

Ruth Bader Ginsburg has now apologized for her statements, acknowledging that "Judges should avoid commenting on a candidate for public office." And, she has promised, "In the future I will be more circumspect."

 

She has shown the integrity and strength of character to reverse field. The Senate's Republicans should do the same.

 

 

http://thehill.com/blogs/pundits-blog/the-judiciary/287753-will-partisan-politics-infect-the-supreme-court

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Richard A. Arenberg

Brown University