Who Gets Appointed to the Supreme Court and How

US: The Court of First Resort 

DANIEL LAZARE / Le Monde diplomatique (Paris) 1nov2005

President George Bush is intent on changing the long-term direction of the US Supreme Court. His candidate as its president, John Roberts, was confirmed by the Senate, but his next nomination, White House lawyer Harriet Miers, was forced to withdraw under attack from his core supporters. Bush’s substitute nominee is conservative Samuel Alito.

WASHINGTON goes through a familiar ritual every few years. A vacancy opens on the nine-member United States Supreme Court, and the president names someone to fill it. The Senate judiciary committee, whose job is to evaluate nominees, holds hearings at which members preen for the television cameras and launch into self-serving speeches before getting around to a question or two (1). The nominee then refuses to answer them on the grounds that it would compromise judicial independence to comment on anything that might come before him or her on the bench. Committee members vote for the nominee anyway, as does the Senate as a whole. With that, the US gets a new top judge who will decide some of the most crucial issues in national politics for decades (2).

With a few exceptions, this is the way it has been since at least 1986 (3) when the arch-conservative Antonin Scalia was so tight-lipped that he refused to tell the Senate whether or not he supported the founding decision that in 1803 had established the court’s power to overturn acts of Congress as unconstitutional.

This year the ritual is unchanged although the stakes are higher than usual. Two vacancies have opened: that of William H Rehnquist, an extreme rightist who died last month after 33 years on the court, and that of the more centrist Sandra Day O’Connor, appointed by President Ronald Reagan, who has served since 1981. If both appointees turn out to be as rightwing as some liberals fear, Bush will have succeeded in pushing the judiciary significantly to the right for years into the future.

Or maybe not. Given the enigmatic nature of the process, no one can be sure whether a particular Bush nominee is an extreme rightist, a moderate conservative, or even a closet liberal. The only certainty is that the Republicans will do everything in their power to ram the appointment through, while the Democrats will be their usual supine selves, barely uttering a peep of protest.

There are a number of reasons for this. One is that the Democrats are still reeling from their presidential election defeat in 2004. Their self-confidence is shot, while their top presidential contenders, Senators Joe Biden and Hillary Clinton, both supporters of the Iraq invasion, are shallower and more intellectually deficient than last year’s contender John Kerry. But the real cause is a deepening ideological crisis.

Bush’s position has supposedly been undercut by the disastrous war in the Middle East and the inept official response to Hurricane Katrina (4). This is true to a degree. But Bush benefits from the underlying dynamics in US society, which are increasingly conservative and xenophobic. Although liberals have been predicting US conservatism’s imminent demise for at least two decades, it is the Democrats who have grown weaker with each year while the Republicans emerge from each crisis stronger and more aggressive.

“Nine old men” The Supreme Court, which in the US system functions as a high constitutional priesthood, is at the heart of the problem. The court has evolved in a curious direction over its long and tortured history. Although progressives have mostly forgotten this, it was once a political institution that leftists loved to hate. Its members were “nine old men”, in President Franklin D Roosevelt’s memorable phrase, bent on hobbling democracy, holding back reform, and seeing to it that the US remained a happy hunting ground for the rich and plutocratic.

In 1859 the Supreme Court set the stage for civil war by ruling that northern states had no power to keep out slavery. In the 1890s it crippled organised labour, while in the 1930s it gutted many of Roosevelt’s most important New Deal programmes. In 1937 FDR turned the tables on it by proposing to pack it with up to a half-dozen liberals. He lost the battle but won the war by causing the judiciary to reverse course and set off in a new direction.

That led to a series of progressive, quasi-revolutionary decisions. Brown v Board of Education overturned racial segregation in public schools in 1954 (though this is recurring, in fact if not in law); Griswold v Connecticut legalised contraception in 1965. And Roe v Wade legalised abortion in 1973. From a bastion of elitism, the Supreme Court had turned into a powerful force for reform.

The new court led to a new political alignment in which liberals and conservatives defined themselves by how they felt about the judiciary’s new role: “pro” for liberals, “con” for conservatives. But there was a problem: even when it pushes democratic reform, the Supreme Court is profoundly undemocratic. Its members are appointed rather than elected (5). Although Congress could find ways to punish them for decisions it does not like, liberal opinion holds that any such move would violate the sacred principle of separation of powers, a doctrine as central to US constitutional theory as the Nicene Creed is to Catholicism.

The court is the ultimate authority from which there is no appeal, the closest thing to a sovereign power that Washington has.

This might not have been so bad if the Supreme Court was a court of last resort. But by the 1950s it was becoming the first resort of those seeking social change. The more power it took on, the more it took away from the elected branches, particularly Congress. Rather than empowering the people, its growing clout reduced them to passive bystanders whose role was to obey nine unelected judges acting in the people’s name.

Predictable consequences The political consequences were predictable. The more liberals looked to the Supreme Court, the more they wrote off the ordinary citizens of the US as a racist, sexist mob. The more they did that, the more that rightwing propagandists derided them as prosperous Ivy League snobs who were contemptuous of the working masses in the great flyover country between Berkeley and Harvard Yard.

Democrats pretended not to notice, but such rhetoric was unnerving. Better at winning lawsuits than elections (lately, given the judiciary’s rightwing drift, Democrats have not been good at either) they tried to compensate by backing off on such issues as abortion or school prayer. Since it was up to the courts to attend to such hot-button issues, they figured that they were free to compromise. Instead of opposing the Republicans, they turned into pallid imitations of Republicans.

This is the story of US politics since the 1960s, as we have recently seen with the scramble over the latest round of Supreme Court appointments. Bush’s first pick was a Reagan administration legal adviser turned federal appellate judge, John G Roberts Jr. Roberts is aged 50, trim, good-looking, the product of a Catholic boarding school, Harvard College and Harvard Law School, and, according to all available evidence, as deep-dyed a conservative as they come: nearly every stance he has taken over the past 25 years has been to the right.

He has opposed strengthening voting rights for racial minorities; supported Republicans in their bid to strip the courts of their power to impose racial integration; denigrated efforts to impose gender equality in the workplace; referred to a “so-called” right of privacy; argued about the pertinence of the decision legalising abortion in 1973; and written in favour of a moment of silence (aka prayer) in public schools (6).

Where were the Democrats? All of which should have been red meat for hungry Democrats. Instead their response has been cautious and non-confrontational. Senator Joe Biden was mainly miffed that Roberts had spoken slightingly of the “Violence Against Women Act”, a bill he sponsored in 2000 (“I actually did write that my little old self, with my staff”). On a bizarrely mawkish note, Senator Dianne Feinstein reminded television viewers that both her father and her husband suffered from cancer and then demanded of Roberts: “If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do?” (7).

Puzzled, Roberts struggled to respond. Otherwise, he stonewalled the committee, refusing to answer nearly 100 questions put to him over three days of testimony (8). He retreated behind bland generalities, declaring modestly that “judges are like umpires”, they “don’t make the rules, they apply them”, as if the rules set forth in the US constitution were as obvious and settled as those in a game of baseball. He repeatedly promised to uphold “the rule of law”, a phrase of infinite elasticity. When asked about his conservative writings as a young Reagan administration official, he said that as a lawyer he was merely saying what he thought his client wanted to hear.

Senator Russell Feingold of Wisconsin said he was concerned that Roberts, as an appellate judge, had recently decided in the Bush administration’s favour in a case involving alleged terrorists held in detention at Guantánamo Bay. Arguably, Roberts should not have taken part in the deliberations knowing that the White House was considering him for the Supreme Court. But Feingold voted for him regardless.

In the end, 21 of Feingold’s fellow Democrats did so as well, as did all 55 Senate Republicans, allowing Roberts to sail through confirmation with better than a three-fourths majority. (Biden and Clinton were among the 23 Democrats voting against.) Why did the Democrats do so badly? Timidity was one reason, and incompetence cannot be discounted as another. But the mystique of an all-powerful Supreme Court was undoubtedly a third. Democrats have invested so much in the concept of a high court embodying the timeless principles of the US constitution (9) that they are unwilling to tamper with its prerogatives. Because the Supreme Court is supposedly above politics, they are unwilling to subject it to stringent political review. Because the court is supposedly independent, they were unwilling to press Roberts too hard on exactly how he would rule.

Bush’s second nominee, Harriet Miers, was even more of a stealth candidate than Roberts; she was a former corporate lawyer from Dallas who had never served as judge or law professor, the usual route for Supreme Court appointees, but who served Bush as his personal White House lawyer.

The appointment of two corporate lawyers would not have augured well for workers and other opponents of unbridled corporate power; the Dallas law firm Miers headed has a large union avoidance division whose job is to advise employers on how to prevent workers from organising. Is that really a priority in Bush’s nation?

Miers is a member of an evangelical Christian church that is strongly anti-abortion; the only non-Texas political campaign she has contributed to recently was that of a vehemently anti-abortion senatorial candidate from Nebraska. When conservatives expressed concern that her rightwing track record was spotty, Bush offered his personal assurances: “I know her. I know her heart. I know what she believes.” Not only must Americans have faith in the constitution and the Supreme Court, they must have it in the president as well.

Miers’s withdrawal from the nomination came as a surprise in Washington; it seems to have been discreetly agreed between Miers and Bush when it became clear that the conservatives did not in fact have faith in Bush’s choice and would not endorse his nomination. They want an overt doughty rightwinger appointed to the court; the political struggle over the law started again.

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Original text in English

(1) When there is a vacancy the US president proposes his candidate, who only becomes a Supreme Court judge once he has been voted through by 100 senators.

(2) In 2004 the Supreme Court decided, by 5 to 4, on George Bush’s presidency when it ruled on the method of vote counting in Florida.

(3) In 1987 Ronald Reagan’s appointment of the ultra-conservative judge Robert Bork to the Supreme Court was rejected by 58 votes against 42 (the Democrats then held the Senate majority). The confirmation of Clarence Thomas in 1991 came after a fierce battle and was only voted in by 52 votes against 48.

(4) See Mike Davis, The predators of New Orleans, Le Monde diplomatique, English language edition, October 2005.

(5) Though the constitution says they may only serve “during good behaviour” (Article III, section 1), they serve for life.

(6) See Ronald Dworkin, “Judge Roberts on Trial”, New York Review of Books, New York, 25 October 2005.

(7) New York Times, 15 September 2005.

(8) According to Alliance for Justice, “Post-Hearing Report on the Nomination of John G Roberts to be Chief Justice of the United States”.

(9) See Daniel Lazare, American constitution above debate, Le Monde diplomatique, English language edition, February 2000.