Judicial politics

Judicial politics

A Washington-based federal judge from the Chicago area is the man of the hour.

If this was an ordinary year, federal appeals court judge and Illinois native Merrick Garland would likely enjoy a relatively easy road to confirmation for a seat on the U.S. Supreme Court.

He has an outstanding legal and professional record, one that fits well within the mainstream of the liberal jurisprudence embraced by Democratic presidents such as Barack Obama, Bill Clinton and Jimmy Carter.

But this is not an ordinary year; it's a presidential election year. And this is not an ordinary circumstance — replacing the late conservative Justice Antonin Scalia with the liberal Garland will overturn the court's current ideological balance.

That's why Garland, who enjoyed overwhelming bipartisan support when he was confirmed by the U.S. Senate as a federal appeals judge, faces an uncertain — perhaps even bleak — future as Obama's nominee.

The high court's work is often complicated. But there's nothing complex about the face-off over this nomination between Obama and Senate Republicans.

There is no principled position. It's shot through with self-interested hypocrisy on both sides, and it's all about power — whether the court will move in a decidedly liberal direction in the future or continue on a more conservative course.

Republicans, citing the so-called "Biden rule" in honor of Vice President Joe Biden, contend that the nomination should be held in abeyance until after the November election, a move that would allow the next president to select Scalia's replacement.

That's the election-year position of Biden, then chairman of the Senate Judiciary Committee, when he was dealing with Republican presidents. Now that his boss is trying to do what Biden once ruled off the table, the veep has reversed his position.

The new position of Biden and Senate Democrats is that, as president, Obama has the legal authority to put forth a nominee that the Senate has an obligation to confirm.

The reality is that if the circumstances were reversed — a Republican president dealing with a Democratic Senate — the parties' positions also would be reversed. The Republican president would be nominating a conservative while Senate Democrats would be scoffing at the idea of confirming that nominee in an election year.

It's unfortunate that the judicial nomination process has sunk to this level. But the politicization of what was once called the non-political branch of government became inevitable when the high court embraced the role of a super legislature that arrogates unto itself the power to decide vexing national political issues — same-sex marriage is just the latest example — better left for resolution to the people's elected representatives.

The court's winner-take-all approach leaves no middle ground for legislators to work out the compromises that grease the democratic process. In that context, activists on all sides of controversial issues are keenly interested in who sits on powerful courts.

It has been open warfare since 1987, when President Ronald Reagan nominated conservative federal appeals court justice Robert Bork.

No one credibly challenged Bork's legal credentials. A former Yale law professor and onetime solicitor general, he was among the most brilliant men ever nominated to the high court. But Senate Democrats, led by then-Sen. Biden, rejected Bork on ideological grounds.

That was their prerogative then just as it is the Republican Senate's now.

No one has clean hands in this game of tit for tat. It's just the sometimes tawdry practice of politics.

Democrats, naturally, will try to make a campaign issue out of the GOP's planned intransigence, and they may make some hay out of it. Illinois Republican U.S. Sen. Mark Kirk, who's facing a tough re-election campaign in a Democratic state, has called for the Senate to consider Garland's nomination even though Senate Majority Leader Mitch McConnell has said there will be no action taken.

The good news for Democrats — and for Garland — is that Republicans stand on the brink of nominating Donald Trump for president. He polls poorly against presumptive Democratic nominee Hillary Clinton, and many Republicans fear he will lead the GOP to a landslide defeat in November.

If that's the case, some Republicans, including U.S. Sen. Orrin Hatch, have suggested the Senate could confirm Garland in a post-election, lame-duck session. If that doesn't happen, a new President Clinton could renominate Garland or another liberal of the nature of Justices Elena Kagan or Sonia Sotomayor for Scalia's seat.

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Sid Saltfork wrote on March 18, 2016 at 10:03 am

At least, the truth has been made clear to the citizens.  Justice is blind.  The highest court in the land is political.  Only justices backed by the extreme of each party are eligible to serve on the Supreme Court of the United States.  The only justice in America is the all mighty dollar.  If you have the money, you can buy justice.

This election has shown the citizens who care that everything they pay taxes for from pork barrel write-ons in admendments to the appointments of judges is wasted.  Two party rule has dominated America's economy, and laws.  It all needs to be flushed, and replaced by Democracy.  Eliminate the Establishment.  Develop multiple political parties.  Vote out the two party Establishment backed by money.  Get mad America, and stay mad until the Establishment is eliminated.

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