The Supreme Court is divided into two blocs, as hostile and immutable as NATO and the Warsaw Pact. In the middle of the two blocs sits Anthony Kennedy, a Yugoslavia-like figure who tilts toward one bloc but has demonstrated significant independence. When and how the delicate balance of power will be broken rests upon two questions: First, will one of the four liberals get sick and die during a Republican presidency before one of the four conservatives gets sick and dies during a Democratic presidency? More specifically, during which party’s control of the White House will Kennedy retire or get sick and die? Upon these questions vast swaths of American law hinge.
I would submit that this is not a terribly sensible way to settle our ultimate legal questions. If we were designing a system from scratch, and somebody proposed an arrangement that looked like this, it would be laughed out of the room. Yet this is only the beginning of the absurdities that pile atop one another in the Supreme Court process.
Since the failed 1987 nomination of Robert Bork, which foundered on the nominee’s controversial legal writings, prospective justices have steadfastly refused to discuss legal issues in their confirmation hearings. Elena Kagan, in a 1995 review, archly summarized Ruth Bader Ginsburg’s impenetrable shield against questioning. She could not answer any specific legal question because it might prejudice a future ruling. On the other hand, “when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals took the good judge beyond her calling.”
In recent years, Republican nominees have taken this practice to a new level of absurdity by not only refusing to divulge their opinions, but also insisting that opinions have no bearing upon their conduct as justices. “Judges are like umpires,” John Roberts said at his confirmation hearings. “Umpires don’t make the rules; they apply them.”
Perhaps you thought the place of the Supreme Court is to rule on matters where the application of the law is subject to dispute, and that, therefore, justices hewing to different philosophies would tend to hew to different interpretations of the law. That would make you a “judicial activist.”
Kagan represents the state-of-the-art modern Supreme Court nominee. She has been preparing most of her career for the time when she would have to deny holding any legal opinions, while building deep connections to the Democratic establishment that leave no mystery as to how she will vote. On top of that, she’s young. This increases the chance that the opposing team’s justices will get sick and die before she does. The ultimate nominee would be some kind of child prodigy who graduated from law school at the age of eleven, interned for members of Congress of both parties yet secretly signaled ideological sympathy, and amassed five or six years of experience in the legal system without rendering actual opinions. She would matriculate to the Court in her late teens, thereafter residing in a bacteria-free bubble that would allow her to serve until the age of 106.
So we have a system based upon installing predictable judicial partisans selected on the basis of youth and the ability to plausibly deny having any political orientation. It is a lifetime appointment, which gives justices every incentive to lie during their hearings and no consequences for having done so. On top of this, add the odd fact that most Republican senators and some Democrats are at least putatively committed to the principle that these lifetime appointments, which carry enormous power, should have a lower threshold of passage than almost any other kind of vote.
This odd viewpoint developed as a historical accident. The filibuster was once a rarity used primarily to stop civil rights legislation. It slowly came into more common usage during the 1980s and ’90s. In 2005, Republicans had a majority in the Senate, but not enough to break a filibuster. At this point, they decided that the practice of subjecting judges to a supermajority requirement violated ... something, and they threatened to change the rules unless Democrats agreed never to do so.
During this imbroglio, Republicans declared themselves so passionately against the judicial filibuster that they have had to maintain this position even as they have extended the filibuster to unprecedented heights. Of course, if there’s any kind of Senate vote where a supermajority makes sense, it’s a lifetime judicial appointment. After all, laws can be undone, and executive branch appointments are temporary. Yet the lifetime judicial appointment, absurdly, is the one category of vote where the minority at least putatively endorses straight majority rule.
“The filibuster should be relegated to extreme circumstances,” declared Senate Minority Whip Jon Kyl, “and I don’t think Elena Kagan represents that.” Apparently Kyl’s idea of “extreme circumstances” includes things like the “United States Capitol Police Administrative Technical Corrections Act” and the nomination of Martha N. Johnson to be the administrator of the General Services Administration—both of which he filibustered.
The most darkly comic moment in the latest confirmation episode was supplied by Oklahoma Senator James Inhofe. Explaining his opposition to Kagan in a written statement, Inhofe noted, “I am also concerned about the seeming contempt she has demonstrated in her comments about the Senate confirmation process.” So the mere fact that Kagan has expressed awareness of the absurdity of the confirmation process has itself become a reason to oppose her nomination. Add one more to the list of ideal Supreme Court nominee traits: a professed belief that the nomination system is just hunky-dory. I suspect we’ll get that teenage justice yet.