New York Times
By Adam Liptak
March 21, 2016
Last
month, Chief Justice John G. Roberts Jr. delivered some blunt remarks
about the Supreme Court confirmation process. The Senate should ensure
that nominees are qualified, he said, and
leave politics out of it.
The
chief justice spoke 10 days before Justice Antonin Scalia died, and he
could not have known how timely and telling his comments would turn out
to be. They now amount to a stern, if abstract,
rebuke to the Republican senators who refuse to hold hearings on
President Obama’s nomination of Judge Merrick B. Garland.
Some
people are hoping that the chief justice will speak out again, and more
directly, addressing the actual nomination of an actual nominee.
It
was not long ago that qualified nominees coasted onto the court, Chief
Justice Roberts said last month. In 1986, Justice Scalia was confirmed
by a vote of 98 to 0. In 1993, Justice Ruth
Bader Ginsburg was confirmed by a vote of 96 to 3.
These days, Chief Justice Roberts said, “the process is not functioning very well.”
The
last three justices should have sailed through, too, he said. He was
referring to Justice Samuel A. Alito Jr., appointed by President George
W. Bush, and Justices Sonia Sotomayor and
Elena Kagan, appointed by Mr. Obama. Forty-two senators voted against
Justice Alito, 31 against Justice Sotomayor and 37 against Justice
Kagan.
“Look
at my more recent colleagues, all extremely well qualified for the
court,” Chief Justice Roberts said, “and the votes were, I think,
strictly on party lines for the last three of them,
or close to it, and that doesn’t make any sense. That suggests to me
that the process is being used for something other than ensuring the
qualifications of the nominees.”
If
Justices Sotomayor and Kagan were “extremely well qualified for the
court,” it is a safe bet that Chief Justice Roberts has a similarly high
regard for Judge Garland, with whom he served
on the United States Court of Appeals for the District of Columbia
Circuit.
“Anytime
Judge Garland disagrees, you know you’re in a difficult area,” Chief
Justice Roberts said at his 2005 confirmation hearing.
In
last month’s remarks, delivered at New England Law, a private law
school in Boston, the chief justice raised a second concern: Ugly
confirmation fights damage the Supreme Court’s legitimacy
and authority.
“When
you have a sharply political, divisive hearing process, it increases
the danger that whoever comes out of it will be viewed in those terms,”
he said. “If the Democrats and Republicans
have been fighting so fiercely about whether you’re going to be
confirmed, it’s natural for some member of the public to think, well,
you must be identified in a particular way as a result of that process.”
“We
don’t work as Democrats or Republicans,” the chief justice said, “and I
think it’s a very unfortunate impression the public might get from the
confirmation process.”
Chief
Justice Roberts was speaking in general terms, of course, and he has
not addressed Judge Garland’s nomination or the possibility that the
Supreme Court will have just eight members
for a year or more. Perhaps he should.
“That
would be a John Marshall moment,” said Akhil Amar, a law professor at
Yale, referring to the chief justice most responsible for the Supreme
Court’s surpassing stature and central role
in American life.
A
statement from Chief Justice Roberts, who was appointed by Mr. Bush,
could demonstrate in a concrete way that the court is not, as he put it
in Boston, made up of Democrats and Republicans.
“He’d
be crossing party lines, so to speak,” Professor Amar said, “and this
would be a third extraordinary moment of John Roberts showing that he is
no partisan.” (The first two moments,
Professor Amar said, were Chief Justice Roberts’s votes to sustain the
Affordable Care Act, Mr. Obama’s signature legislative achievement.)
Professor
Amar added that “nothing prevents the chief justice from expressing his
very high regard” for Judge Garland. Indeed, he said, there is recent
precedent for judicial endorsements
of a Supreme Court nominee. In 2006, seven appeals court judges
testified on Justice Alito’s behalf at his confirmation hearings.
Barry
Friedman, a law professor at New York University, said Chief Justice
Roberts could play a singular role. “It’s the chief justice’s job to
guard the institutional integrity of the court,”
he said. “It would be appropriate for the chief justice to remind the
coordinate branch of government that they are leaving the Supreme Court
in an awkward state for a couple of terms if they don’t act.”
A
long confirmation fight without so much as a hearing would hurt the
Supreme Court by elevating political considerations over the rule of
law, said Lori A. Ringhand, a law professor at the
University of Georgia and an author of “Supreme Court Confirmation
Hearings and Constitutional Change.”
“Law
matters to the court, and it is the law that is going to get lost in
the media frenzy,” she said. “Interest groups and partisans will dive in
with no holds barred, but neither the nominee
nor the senators will have the opportunity to talk through important
issues at stake in the relatively more disciplined format the
confirmation hearings can provide.”
In
2007, speaking to a bar group in Memphis, Justice Scalia reflected on
what he said had become “a controversial, bitter confirmation process.”
“I
was confirmed 98 to 0,” he said. “I was known as a conservative then,
but I was perceived to be an honest person. I couldn’t get 60 votes
today.”
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