The Supreme Court Has Never Been Politics-Free

The Supreme Court of the United States is political. Sorry if that comes as a bummer to you purists out there. The Supreme Court is supposed to be removed from the rancorous debate of Capitol Hill and the politics and dealings of the White House. That’s the rose-colored view that we believe the Founders had in mind, anyway.

But, come on. Article II, Section 2 of the Constitution gives the president the power to nominate judges to the Supreme Court, with the advice and consent of the Senate. If the president is of one political party, and all the senators are of one or another political party, then why should anyone be surprised if the Supreme Court ends up with some political stink on it from time to time?

This is not a recent phenomenon. We act as if controversial decisions with political implications like Citizens United and the affirmation of ObamaCare’s individual mandate are new to the Republic. But look back over history at Dred Scott, Brown v. Board of Education, the Northern Securities trust-busting case during the Teddy Roosevelt administration. These cases and many more resulted in the spending of heavy political capital, and sometimes made or broke not just legal precedent, but political careers as well.

The death of Justice Antonin Scalia will stir the political pot in DC. Image: Jewel Samad / AFP / Getty Images

The death of Justice Antonin Scalia will stir the political pot in DC.
Image: Jewel Samad / AFP / Getty Images

So, with Washington and the associated punditocracy getting their collective panties in a twist over just how to replace recently deceased Justice Antonin Scalia, it’s hard to wonder why everyone is acting as if this is uncharted territory.

Perhaps we can inject some common sense into the current fight over a yet-to-be-named Supreme Court nominee by taking a look at history.

For starters, let’s smash the Republican argument that the president should not appoint a Supreme Court nominee in his last year in office. The Constitution places no stipulations on when a president can put forth a nominee for the Supreme Court. Technically, he could do so up to the last day of his term if he so desired.

Going back 100 years, Presidents Taft, Wilson, and Franklin Roosevelt all submitted nominations to the Supreme Court during an election year and seen those nominees confirmed. Ronald Regan’s nominee Anthony Kennedy made it to the Supreme Court before Reagan left office. Of course, this was after earlier nominee Robert Bork went down in such a spectacular way that his name became political slang for defeating a nominee through a coordinated political attack.

The Supreme Court will not be closed for business while the nomination process goes forward. Image: Richard Brownell

The Supreme Court will not be closed for business while the nomination process goes forward.
Image: Richard Brownell

The Democrats have no reason to be offended that the Republicans would suggest a moratorium on nominations, though. Democrats in 1960 proposed a resolution attempting to keep President Eisenhower from making late term appointments.

Democrats likewise forget that Republican calls for blocking any of President Obama’s Supreme Court nominations are hardly without precedent. There was a call in 2007 by Democratic Sen. Charles Schumer for the Senate to summarily block any and all of Republican President George W. Bush’s nominees. And when President Barack Obama was a Senator in 2006, he went so far as to call for a filibuster of Supreme Court nominee Samuel Alito.

There are numerous examples of the intrusion of politics into the realm of the Supreme Court going all the way back to the nation’s founding. Neither the Republicans nor the Democrats are innocent of such shenanigans. Only when we become nostalgic for days that never existed can we see a time when it was otherwise. Scalia himself, a skilled jurist by any account, said as much in 2010.

“As long as [the constitution] is subject to revision,” he told a group of law students, “you should get used to controversial and absurd political theater when a person is nominated.”

Theater, huh? I’ll grab the popcorn.