Partisanship and the Supreme Court: Is there a way out?

I would like to take this discussion to a level above partisanship.

Here’s how partisans see it, as in any serious partisan conflict, there is no agreement on when the fight for control over the Court began.

Republicans and their supporters like to say the cause of the judicial conflict started with the attacks on Bork since Ted Kennedy ignored a long-standing de facto agreement to weigh a nominee based on their qualifications and not on their values.  And, that the Dems followed that up with their allegations of sexual abuse against Clarence Thomas and later Kavanaugh.

Democrats counter by pointing out they readily supported Anthony Kennedy as Reagan’s alternative to Bork.  Further, the efforts to block Thomas and Kavanaugh were not successful.  They feel that the GOP’s angst is based on the feeling that the Court became too liberal in the 60s, maybe you, the reader, remembers the Impeach Earl Warren sentiments.

The issue at hand involves Mitch’s actions.  There is a strong feeling that Mitch abandoned fair play by blocking Garland’s nomination without any hearing let alone a vote—an unprecedented action in a President’s last year in office.  He lied by inventing the fraudulent idea that there were precedents for his action.  He said let the voters decide in the next election. Graham and Grassley both said the same thing. 

Mitch and the rest all abandoned that notion by saying that it was not relevant when the Senate and the President are of the same party and by the Democrats being nasty to Kavanaugh.  They thus ignored the Dem Senate’s resounding support for Reagan’s appointment of Kennedy in Reagan’s last year as President.  They also abandoned the tradition that a replacement for a Supreme should be a like-minded successor. They had forgotten that in 1968, the Dems controlled the Senate and with members of the GOP rejected both of LBJ’s appointments of Fortas and Thornberry leaving Nixon the opportunity to fill those two seats.  Fortas was the first one rejected for his views and not for his qualifications.  He and Thornberry were rejected for cronyism with LBJ and for backlash against the Warren Court.

The bottom line is that Mitch had the power to do what he has done; and, he used it.  He has used it to guarantee a 6-3 conservative majority on the Court.  Dems fear what that majority will do to the ACA and Roe v Wade.  They believe that it was Mitch that ignored norm related niceties.  They have reason to think that.

Understandably, Republicans fear that if the Dems win the Senate and the Presidency in this upcoming election they will retaliate by using their power to do so. They don’t want to acknowledge that the thirst for revenge has a solid basis in Mitch’s actions.

However, Dem moderates are highly unlikely to do that. It could set off a fire storm akin to when F.D.R. tried court packing in 1937.  Yes, there are progressives like AOC who want to do what the Reps fear, but they are a relative fringe of the party.  Biden and his rivals, including Sanders, ruled court packing out in the Primaries.  Biden does not feel he needs to repeat what he has already said.   Essentially, he is saying much depends on how much the GOP would do to stiff Biden’s attempts to reform, for example, the ACA.  Further, it is unlikely that the Dems will gain more than 51 seats. 

Is there a way out of this partisan war that has threatened the public perception of the Court being above partisanship?  It is hard to see how this partisan war can end up well.  The Court’s authority really rests on the trust of the public that they are not there for partisan reasons; and, will be impartial.  The more audacious the attempts to skew its membership the more the Court will lose in credibility.  The Court needs to be trusted as being impartial.  That has been Chief Justice Rodgers main thrust.

How to get to that stage?

There is a way.  As The Economist has pointed out, we are the ONLY democracy whose judges on the highest court enjoy lifetime terms.  Germany, for example, is a good example where their constitutional court justices sit for 12 years.  In our case, 18 year non-renewable terms would fit the bill.  It would guarantee that each four-year Presidency would have the ability to appoint two new judges.  This would reduce the partisan spectacle of big battles over the ideology of the judge.  It would reduce the court being central to our politics and more centered on the law.  Let us make RBG the last judicial superstar.

I will end with what I have said before that in any normal universe Barrett would be confirmed and should be confirmed.  I am not troubled by her faith.  She has made it clear that her faith animates her in private; but, she would be ruled by law on the Court based on Scalia’s originalism theory.  I do not agree with that theory but not enough to oppose her candidacy.

It is a fact of our history that once Judges are free to not have to worry about our partisan battles they may not act as their supporters would have wished.  That has already been the case with both Gorsuch and Cavanaugh not to mention our Chief Justice.  They will do what they believe is the best way to resolve very difficult cases.  I think Judge Barrett is well-qualified to do that and I do not worry about how she will treat the ACA and Roe vs. Wade.  I also do not think Trump can count on her ruling in his favor in a contested election.

Fair enough?  I think so, but I could be wrong. What do you think?