Trump Lowers the Dignity of the Supreme Court
I admit it. I am a sucker for dignity. I am a fan of the quiet and the thoughtful and the somber, not the loud and the raucous and the attention-grabbing. That’s probably why I don’t like the celebrity culture or made-for-television politics. And why I am appalled at the idea of turning the selection of a U.S. Supreme Court justice into a game show.
Let me be clear. I have nothing against Judge Neil Gorsuch, President Donald Trump’s nominee to fill the vacancy left by the death of Antonin Scalia. And I say this having written last year in support of Judge Merrick Garland, on whose nomination the Senate shamefully refused to act.
But having said that, I think the impression the White House cultivated that it was calling in two potential nominees in order to parade one of them before the cameras is undignified. It’s beneath the dignity of the presidency, and it is absolutely beneath the dignity of the judicial branch. There is no need for the suspense. There is no need for the drama. Pick someone, invite that person to Washington, and if it leaks it leaks.
The Supreme Court holds an almost mystical place in American political iconography. If it is no longer our secretive constitutional Olympus, the court at its best nevertheless operates at a certain distance and even diffidence from the rest of the government. In the 1830s, toward the end of his tenure as chief justice, the great John Marshall worried that the rise of Jacksonian democracy, with its more powerful and activist presidency, would be a bad thing for the court. He was referring to the question of whether a powerful president might defy the justices’ edicts. But a president can also harm the institution by stripping it of the dignity that in turn engenders public respect. Tuesday night’s bizarre ceremony, with its implicit designation of a “winning” and a “losing” candidate for the nomination, presents exactly that danger.
To be sure, there is much that is undignified about how we talk and think about the Supreme Court these days. Let’s begin with the deathwatch, about which I have written before. I refer to the way partisans chart out at the beginning of each new presidency how long the justices whose votes they like and the justices whose votes they hate are “likely to serve.” This is intended as a tactful way of discussing how long they are likely to live. Actually it is tactless, and at times mean-spirited. There’s often an eagerness behind it: “We need to win the next time around because there will probably be two vacancies.” That sort of thing. It’s as though partisans are actually rooting for a strategic distribution of deaths: during one of our presidencies, not one of theirs.
But the lack of dignity in the deathwatch hasn’t a patch on the lack of dignity in the confirmation hearings. Actually it is almost impossible to have dignified hearings. Interest groups on both sides are too powerful, and the lure of the soundbite is too strong. We all hate the showboating of the modern confirmation process, where groups raise money and senators raise their profiles through vicious attacks on the nominees. But the showboating is integral to the process. I have argued for three decades that requiring nominees to testify is wrongheaded and even embarrassing. Nothing in recent history suggests otherwise.
Think about the process. Senators ask the nominee questions they know that no one preparing for service on the Supreme Court can answer. They ask for promises, under oath, that the nominee will vote a particular way on particular cases. Nominees who refuse to play (as pretty much all of them do) are accused of being evasive. But it is the senators, not the nominees, who are out of line.
As I said: undignified.
Actually, testimony by the nominee did not become a regular part of the confirmation process until the 1950s. At that time the Senate was largely run by segregationist Southern Democrats. Furious about Brown v. Board of Education, they decided to require all future nominees to appear before the Judiciary Committee, because they wanted to press the potential justices on their views about school integration. In effect, the Dixiecrats sought promises that the nominees would vote to overturn Brown.
When the segregationists began this nonsense, liberals were outraged. They argued, correctly, that inquiring about the nominee’s views was a threat to the constitutional separation of powers. To their credit, liberals held to that position for over a decade -- that is, until Richard Nixon’s wholesale remaking of the Supreme Court. After that they decided to muck about in the nasty swamp invented by the right. And have played in the same muck ever since.
I don’t know whether the Senate will confirm Judge Gorsuch, or whether a Democratic filibuster will shoot him down. I do know that the process of confirmation has long been a mess, and that the mess has cost the Supreme Court a great deal of its dignity. Turning the selection into a game show is not the way to make things better.
As I point out in my 1994 book “The Confirmation Mess,” the nastiest confirmation hearing we have ever had was Thurgood Marshall’s in 1967. But it is poorly remembered because it was not televised.
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