Some say it all started with the failed Robert Bork nomination, when Republicans claimed the Democrats who opposed him fought with tactics that were uncivil at best, unfair at worst. Others would argue that it really escalated when Clarence Thomas struggled to gain Senate approval after the sexual harassment charges presented by Anita Hill.

The question is, when did the U.S. Supreme Court begin its gradual decline into the perception that the court is nothing more than a partisan reflection of the party that has a majority, slim or not, in the Senate?

Without doubt, the objectivity of the court was forever damaged when the justices ruled in a 5-4 partisan decision that made the republican, George W. Bush, and brother of the governor of the state whose votes were in question, president of the United States. That decision, and its all-too-obvious partisan ruling, a ruling so explicit that the court had to state the ruling could never apply to any other decision ever made by future courts, broke the perception of objectivity.

Just prior to the Court’s ruling in Bush v. Gore, the U.S. Supreme Court had the approval of 62 percent of Americans. Since that ruling the court has never had that much support by the American people. As of late 2017, Gallup polling reports 49 percent approve the way the Supreme Court is handling its job.

During the George Bush presidency the civility of nominations degraded. But once Barack Obama became president, judicial nominee to the U.S. Court of Appeals found themselves filibustered not rarely, but commonly, as a result of Senate Republicans seeking to hold a conservative majority in the second highest courts using any means available. Minority Leader Mitch McConnell led the Republican attack, forcing Majority Leader Harry Reid to end the judicial filibuster for all but Supreme Court nominees, or accept that few, if any, Appeals Court Democratic nominees would ever be seated.

Then, in the last year of the Obama administration, now Senate Leader McConnell acted in the most constitutionally damaging way possible, by refusing to consider the Obama nomination of Merrick Garland, a qualified, moderate judge, to the court. This action violated Senate history and resulted in the stealing of a seat on the court, today insuring an imbalance that may last for decades.

But that action alone, while undermining the senate, was not enough for Republicans. In order to insure that Neil Gorsuch would win confirmation, the republican majority, 51-49, voted to end the filibuster for court nominees, no longer requiring 60 Senate votes to confirm a justice to the court. And that change may well allow the appointment of Brett Kavanaugh by a simple party vote, ending forever the importance of the Senate role in “advice and consent.”

Few actions could be more damaging to the nation than making the lifetime appointment of a Supreme Court justice subject to little more than a presidents’ nomination and his parties’ rubber stamp approval.

Kavanaugh is a candidate with excellent credentials, but also a candidate about which questions about his political activities and his personal excesses need be asked and answered. Given the anticipated “easy vote” by Republicans, none of those questions will be answered by the nominee, for all Kavanaugh need do is defer answering, with the knowledge that he already has the winning votes with the Republican majority.

But thinking senators would want to know how Kavanaugh would act and decide should he have to consider a president subpoenaed by a special prosecutor. It would be interesting to know how a judge might take on serious debt to attend baseball games and how that thinking influences his other decisions. Certainly, among his 300 rulings senators might wish to explore with the candidate the legal precedents he applied in those cases.

But none of that will matter. Kavanaugh’s nomination likely, by itself, insures his seat for the next 3-4 decades.

The process is badly broken.

 

Jim Crawford is a retired educator, political enthusiast and award-winning columnist living here in the Tri-State.