Halsey Frank: Supreme politicization


On January 27, Supreme Court Associate Justice Stephen Breyer formally announced his intention to resign at the end of the current term after 27 years on the Court. President Biden quickly reaffirmed his campaign promise to nominate a black woman by the end of February.

Democrats are determined to see it done.

I understand their reaction. Since Richard Nixon’s presidency, six Republican presidents have appointed 15 Justices, while two Democratic presidents have appointed four.

In particular, Democrats resent Donald Trump’s appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They feel stung by Republicans’ refusal to consider Merrick Garland’s nomination to replace conservative icon Antonin Scalia, by Barrett’s replacement of liberal icon Ruth Bader Ginsburg, and by Clarence Thomas’ replacement of liberal icon Thurgood Marshall. They feel that Kavanaugh and Thomas are particularly unworthy. They feel that Breyer’s is a liberal seat that they are entitled to hold.

So, the replacement of Breyer is likely to be the latest round of politicizing the Court in a long, downward spiral that includes as unfortunate milestones the ugly treatment of Robert BorkClarence ThomasZoe BairdKimba WoodLani Guinier, and Harriet Miers, in addition to Garland. There are indications that politicization is taking a toll on the civility of the Court’s justices. Although the court has survived tension amongst its members before, tension is not ideal.

Politicization will diminish both the Court and the nominee. Biden would have done better to say nothing about race and gender and nominated one of the seemingly well-qualified people that have been identified. But Biden used the issue to win the presidency, and he is down in the polls and needs to curry favor with his base.

At the national level, our government is an effort to fairly and rationally regulate behavior using law. We make that law through our elected representatives. The executive implements, administers and enforces it.

The judiciary operates as a check and balance on the legislative and executive branches. It clarifies what the law means when it’s unclear. It resolves disputes on the basis of the law, in a fair and impartial manner; not on the basis of the race or gender of the judge or the parties.

It is the least democratic of the three branches, made up of appointed judges who are insulated from the public. It is supposed to be the most independent, non-political, thoughtful, and rational of the three branches of our government, and the Supreme Court is supposed to be the ultimate authority of that branch.

The founders thought that the qualifications to be a federal judge included character, integrity, knowledge, and skill and expertise in the law. Judges had to have the fortitude to stand up to the legislature and the executive in the event that they overstepped their powers, and to stand up to the people in the event that they got misled or carried away. Judges were supposed to adhere to precedent and resist dangerous innovations.

When Biden and his supporters emphasize the race and gender of a nominee to be a Supreme Court Justice, they undermine those principles, they undermine the nominee, they undermine the legitimacy of the court, and they contribute to the sense that the Court is a political institution operated by political actors.

There’s no denying that there is an element of politics involved in the Court’s makeup and decision-making. But it should be resisted. The Court is not supposed to be a supra-legislature that makes law and decides issues according to various constituencies’ interests. Equally, there’s no denying that a diversity of perspectives improves the quality of any group’s decisions, including a group of Supreme Court justices.

But we would all be better served if the parties involved in the process focus on the qualities that good judges share. Presidents will choose nominees who lean their way. The Senate should inquire to ensure that they possess the qualities of a good judge and confirm them if they do. That’s enough politics in the judiciary.


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