Court watchers fear the partisan showdown over whether to fill the vacant seat left by the late Justice Antonin Scalia is politicizing a court designed merely to settle disputes, not shape public policy.
"They are trying to cloak obstructionism with language of letting the people decide, as if they are trying to promote democracy, but I think people see this as a political game," said Verna Williams, a Judge Joseph P. Kinneary Professor of Law at the University of Cincinnati College of Law.
But on the floor this week, Senate Judiciary Chair Chuck GrassleyChuck GrassleyTrump huddles with Senate leaders ahead of Supreme Court battle Trump to announce Supreme Court pick next week Trump, Senate leaders to huddle on Supreme Court MORE (R-Iowa) blamed Democrats for making the nomination process a political game of tug of war.
“They want nothing more than to make the process as political as possible,” he said. “That’s why the president wants to push forward with a nominee who won’t get confirmed. That’s why the other side is clamoring for a hearing on a nominee everyone knows won’t get confirmed.”
The fight is unique, in that it’s happening in the middle of an election year and could lead to the longest running Supreme Court vacancy in history. But Erwin Chemerinsky, dean of the University of California Irvine School of Law, said it’s not unique in that there have been bitter confirmation battles before.
He pointed to Robert Bork, a 1987 Ronald Reagan nominee who was rejected by 58 Democrats, and Clarence Thomas, a President George H. W. 1991 nominee, who was confirmed by a narrow 52 to 48 vote.
Though not the first time lawmakers have gone head-to-head over a nomination, Jake Faleschini, director of the Courts Program for Legal Progress at the Center for American Progress, said the high court has been able to “rise above the partisan rancor" in the past.
“Citizens trust the court more than the other institutions,” he said. “They pretty much overwhelmingly trust that the court is doing the right thing most of the time. I think the Senate’s actions are threatening to put the court in the same place as the rest of the political institutions.”
Though no one lobbies for the justices to vote one way or another on a case, Chemerinsky argued that the court has always been political.
“There have been confirmation fights throughout American history because people recognize who’s on the court makes all the difference in deciding opinions,” he said.
Shannen Coffin, who served as counsel to former Vice President Dick Cheney, agrees.
“It’s hard for me to conceptualize a world in which the court isn’t already significantly political,” he said. “This is a court that has been very willing to jump into gay marriage, abortion and the like, so the objective of the president in filling this vacancy is to ensure it remains this way, that it’s a solid vote for his agenda and the Democratic agenda.”
Coffin, who is now a partner at the D.C. law firm Steptoe & Johnson LLP, called the claims of politicization overblown.
“Let me be clear, the court has become what is should not be, which is a significant player in the cultural debates of our time,” he said. “The founders intended to create a body to decide cases of controversy under federal law. The court has assumed a place in our political firmament that is beyond anything it was designed to do and as a result, this debate does reflect that politicization, but it’s already there and it’s entirely improper.”
If President Obama does not succeed in naming Scalia’s successor before he leaves office, experts say the seat will likely be remain vacant until spring 2017, making it the longest running Supreme Court vacancy in American history.
Chemerinsky said former Supreme Court Justice Abe Fortas holds the title now. His seat sat vacant for 391 days in 1989 after the Senate rejected two nominees before approving Harry Blackmun.