Both sides of politics want predictable, not impartial judges

Brett Kavanaugh did the most to draw attention to his own political background by proclaiming the opposition to him was a ‘political hit’, Picture: AP

Dwight Eisenhower was presented with a sudden and unexpected opening on the US Supreme Court in 1953 when chief justice Fred Vinson died. To fill the slot, he nominated a thoroughly political man with no prior judicial experience: Earl Warren, the governor of California and a former Republican presidential candidate.

Warren was confirmed by a voice vote in the Senate and joined a court heavy with similarly political figures. It contained at that point three former senators and two judges who had served as attorney-general for the president who appointed him.

The precedent is relevant today because of the roaring controversy over the nomination of Brett Kavanaugh to the Supreme Court, which hangs in the balance this week. That nomination was put into peril initially by charges Kavanaugh sexually assaulted a young woman when both were teens.

But after one of the most dramatic days of Senate testimony in recent times last week, the nomination now also is clouded by charges that Kavanaugh, in emotionally defending himself, showed that he is both too political in background and lacking the kind of even-tempered demeanour expected of judges.

The sexual-assault accusation is being sorted out — at least to some extent — by the FBI.

Yet the other assertions are, in some ways, even harder to resolve, because they go to a broader question without a clear answer: What kind of person does the country want as a Supreme Court judge?

The political question is particularly tricky. In the past, a political background was considered fine, perhaps even desirable. Today, it is seen as a questionable attribute.

Senators from both parties proclaim they want fair and impartial figures who bring no political agenda to the court.

In fact, that is somewhere between misleading and a lie; both sides actually want predictable judges, not impartial ones.

Republicans and conservatives expect their nominees to defend conservative programs and ideas. Indeed, that expectation formed the entire basis for the support many conservatives gave Donald Trump in the 2016 presidential campaign.

Similarly, liberal Democrats want liberal judges, and they expect Democratic senators to do everything in their power to block conservative appointments.

That forms a large part of the pitch some Democratic activists are making to turn out supporters in key Senate races this fall.

These expectations actually are rational considering the questions the country now expects the Supreme Court to decide.

A deeply polarised political system can’t bring itself to fully resolve burning social questions — abortion, same-sex marriage, gun rights — so it relies on the courts to do the job. The drawing of congressional districts has become so blatantly political the only way to reverse the process is to look to the courts.

And, of course, the country turned to the Supreme Court to settle the entire 2000 presidential election because the state of Florida couldn’t figure out who really won there. If the political part of the system worked better, the court wouldn’t have to do so much.

So it’s no surprise the nomination and confirmation of Supreme Court judges have become more partisan and divisive. Yet within this trend lies a ticking time bomb for society: Relying on unelected figures who don’t answer to voters to resolve the most emotionally charged social issues strains the democratic process.

Partly because of such pressures, presidents these days are more likely to pick judges who have prior experience as judges, and in some cases experience only in the legal and judicial spheres.

Certainly that makes today’s justices less political than were some of their predecessors. But the image also is a bit misleading, because judges aren’t quite as divorced from the messy world of politics as it might seem.

Elena Kagan, for example, worked in the Clinton White House, not only in the counsel’s office but in the domestic policy shop. Clarence Thomas worked for a Republican senator and had two jobs in the Reagan administration.

Into this picture walks Kavanaugh. Though it was less discussed initially, his political background always was one reason his nomination engendered such passionate Democratic opposition.

He worked for independent counsel Ken Starr in investigating then president Bill Clinton and his inner circle; he was part of the legal team for president George W. Bush fighting out that 2000 election controversy in Florida; later he was a top White House aide to Bush.

Kavanaugh himself, though, did the most to draw attention to his own political background by angrily proclaiming during his testimony that the opposition to him was a “political hit” born in part of “revenge on behalf of the Clintons”.

Now that passage is returning to haunt the federal appeal court judge for the Washington circuit.

In the sorting out, perhaps the country can finally decide how much politics it wants in a judicial background.

The Wall Street Journal