Next Supreme Court justice should not have to face Senate obstruction

Next Supreme Court justice should not have to face Senate obstruction
© Getty Images

In connection with a nomination to the seat being vacated by Supreme Court Justice Anthony Kennedy I penned a column for USA Today in which I wrote that “members of the Senate of course should have time to evaluate the nominee’s record and to consult with the White House.” I also urged the Senate “to do its job fairly and expeditiously so that the court is at full strength at the beginning of the next term.”

The most common reply to my column questioned why it was alright “to delay Merrick GarlandMerrick Brian GarlandDem senators demand GOP judicial group discloses donors John Legend: Republicans play to win, Biden plays to impress the media Biden says he opposes expanding the Supreme Court MORE’s nomination for a year and never act on it, but now you think the Senate needs to do its job and act quickly? Why doesn’t the same GOP argument apply now as it did then, that the decision should be delayed so that the voters can decide. It seems to be a complete double standard and the height of hypocrisy.”

ADVERTISEMENT
Having served in Washington during the turbulent time of 9/11 and its aftermath, I know how unfair people can be when they lack facts or let their emotions overcome their judgment or deliberately pursue an agenda for political gain. I have experience dealing with hypocrites, so let me respond to those who claim that my views are hypocritical.

In a column for USA Today in 2016, I urged Senate Republicans to hold a hearing and vote on the Garland nomination. I wrote that as counsel to President Bush, “I witnessed first hand the obstruction by Senate Democrats of well-qualified judicial nominees based on politics. Members of the Senate may not value being consistent and fair, but I do. I believed Senate obstruction through inaction was wrong when I was on the other side of the process and I believe it is wrong today. The president has done his job and when the Senate is prepared, members should do theirs.”

Let me be clear. I am beyond pleased that Justice Neil Gorsuch sits on the Supreme Court. He once worked with me at the Justice Department. I know him to be fair and honorable, and I predict that over time he will become a superb justice. I am not pleased, however, at how Republicans failed to do their job and left open the seat left by Justice Antonin Scalia that Gorsuch now occupies. I know Gorsuch would not be on the Supreme Court but for the Senate obstruction.

I am also aware, and as I wrote in my 2016 column on Garland, there is nothing in the Constitution that requires the Senate to act on a nomination within a certain period of time or ever. Nevertheless, some fear the Garland episode provides further confirmation that Supreme Court justices are political appointees like other government political appointees who are expected to carry out a political agenda.

One of the most consequential decisions for a president under our Constitution are appointments to the Supreme Court. I witnessed President Bush work diligently to choose nominees with exceptional qualifications and a clear understanding of the important, but limited, role of the courts in our government. I suspect virtually everyone agrees judges should approach cases with open minds and without bias.

The huge divide of opinion among Americans is over the ideology of an impartial judge, over how that impartial judge decides a case. Perhaps in part because of a dysfunctional Congress, today some Americans expect judges to weigh into every controversy and to usurp the power of another branch of government when convenient, to base judicial decisions on shifting societal norms and emerging trends, and to divine fundamental rights even though the text of the Constitution is silent as to those rights.

President TrumpDonald John TrumpCNN's Camerota clashes with Trump's immigration head over president's tweet LA Times editorial board labels Trump 'Bigot-in-Chief' Trump complains of 'fake polls' after surveys show him trailing multiple Democratic candidates MORE campaigned on the promise to appoint judges who have an appropriate respect for precedent and due deference to officials in the elected branches who are accountable for their decisions to the American people. He promised federal judges who in their decisions demonstrate fidelity to the text of the Constitution and the statutes passed by Congress. For better or worse this president has followed through on many of his campaign promises. So with respect to a promise this important, few have doubts about the type of person he will nominate.

Once President Trump decides who he believes is best qualified to shape the jurisprudence of our country for generations to come, I believe it only fair and right for the Senate to pass judgment on that decision. That was my belief with respect to the Garland and Gorsuch nominations. It remains my belief today. The Senate majority leader believes the Senate can complete this work sometime in the fall. Depending on the timing of the nomination and the qualifications of the nominee, I see no reason to question whether the court can begin the October term at full strength.

Alberto Gonzales was the 80th attorney general of the United States and counsel to the president in the George W. Bush administration. He is now a distinguished professor and dean of the Belmont University College of Law.