Legal Commentary

Life Tenure And Recognizing The Politics Of The Supreme Court

By Big Tent Democrat

Linda Greenhouse writes:

[W]hy do other countries not suffer from the same toxic confirmation battles that we do? It’s not because the United States Supreme Court maintains a hotter docket. Courts in other countries frequently decide cases with major implications for domestic politics. The Canadian Supreme Court declared that country’s abortion law unconstitutional in 1988. In 1995, the brand-new South African Constitutional Court struck down the death penalty.

Rather, structural differences are what seem to matter: how justices are appointed, how long they serve — and also how they behave once on the bench. No other country has adopted the U.S. model of life tenure for judges. High-court judges typically serve for a single nonrenewable term of 9 to 12 years — a period during which Supreme Court justices in the United States are just getting warmed up.

Therein lies the answer - the Supreme Court is a political institution - one of the three political branches of the federal government. But unlike the others, once in office, Supreme Court Justices are exempt from the accountability the other two political branches face - elections. Because of that, all of the politics of the Supreme Court show up in the confirmation hearings and, to a lesser extent, in Presidential elections (a real shame imo, it should be a first line issue in every Presidential election.) More . . .

But after all the sturm und drang, very rarely are Presidential nominees to the High Court rejected. It's more show than substance. This is a result of two factors, both bad for progressives and Democrats: (1) After Bork, Republican Presidential SCOTUS nominees are all confirmed no matter what. For all the talk of opposition, the Democrats fear blocking a Republican's SCOTUS nominees. As a result, people like Samuel Alito and Clarence Thomas sit on the Court, though they both could easily have been rejected. (2) Democratic Presidents tailor their picks to avoid concerted opposition from Republicans. Since, LBJ, no Democratic SCOTUS pick has been as ideologically liberal as Republican picks have been ideologically conservative.

Consider the picks for the Dems -- Ginsburg, Breyer and Sotomayor. Now consider these picks for the Republicans -- Rehnquist, Scalia, Thomas, Roberts, Alito.

What woulds be the equivalent of the ideological nature of Dem picks would be Stevens, Souter, O'Connor and, to some extent, Kennedy. The Dems do not pick their Scalias and Alitos. The Republicans do.

Will the next pick be different? Not likely. Even Diane Wood would be a very mainstream pick; her views would fall in line with Justice Ginsburg's in my view.

The next GOP pick (hopefully a long time from now)? Look for a Roberts/Alito type.

Speaking for me only

Full post as published by TalkLeft on April 24, 2010 (boomark / email).