Politics Where There Shouldn't Be: The Senate's Politicization of the Supreme Court
In the wake of Justice Ruth Bader Gingsburg’s death, the American people have watched as President Trump attempts to fill her seat on the Supreme Court. Under Article II, Section II of the Constitution of the United States, it is the duty of a sitting President to nominate a judge to fill vacancies on the Supreme Court. It may be the duty of the President to nominate a judge, but it is up to the Senate to consider and confirm that nominee. Because of this, it can be argued that the Senate makes the decision regarding the appointment of Supreme Court Justices, not the President. It is the civil duty of the Senate to consider all nominees, regardless of party. However, in recent times, the Republican-led Senate has used its power to politicize an area of the government where politics is not welcome: the Supreme Court.
Four years ago, President Obama announced his nominee to fill the vacancy left on the Supreme Court by the death of Justice Antonin Scalia. The nomination was approximately nine months before the November elections, which gave the Senate ample time to consider and confirm a nominee.[1] However, Republican Senators made it clear that President Obama’s nomination would not be considered because of the upcoming election. Several prominent Republican Senators made announcements, including Senator Lindsey Graham who was quoted shortly after the death of Justice Scalia as saying “Use my words against me. If a Republican is President after the 2016 election and there is a need to appoint a Supreme Court nominee during an election year, we will not move forward.”[2] I believe the Senators were unwilling to conduct hearings with President Obama’s nominee because for partisan reasons. They did not want to add another liberal Justice onto the Supreme Court. The sentiments of the Republican leadership, in its unwillingness to conduct hearings on a nominee in an election year, would be tested once again four years later. This time, however, it would be with a Republican President, Donald Trump.
President Donald Trump has been provided with three opportunities to fill vacancies on the Court in his time as President. In these three opportunities, President Trump has presented three candidates to the Senate and all three have been confirmed. In comparison, President Obama also had three opportunities to provide nominees to fill vacancies on the Court. However, only two of his three nominees were confirmed by the Senate. I believe the current Republican-led Senate is attempting to politicize the Supreme Court by only confirming nominees who are either nominated by a Republican president or who have a reputation for leaning right. Blocking President Obama’s nomination in 2016 was the first step to gaining conservative power on the Supreme Court. If the Senate allowed President Obama’s nominee to be confirmed, it would have added another liberal voice onto the Court. The Republican-led Senate has sought to avoid that by confirming as many conservative nominees to the Court as possible. The greatest example of this has manifested in the ongoing hearings of Amy Coney Barrett. Barrett is being considered to fill the vacancy left by the death of Justice Ginsburg. The Senate is rushing Barrett through the consideration and confirmation process as an attempt to add one more conservative Justice onto the Court in the event Republicans lose power in the Senate and the White House after the approaching election.
Introducing political ideologies into the Supreme Court is a dangerous game. The Supreme Court was created with the intention of being an apolitical Court that served as the “Highest Court in the Land.” The Supreme Court was created to hold all of the Judicial Power of the United States and to utilize that Power as is seen fit by the Justices.[3] Introducing politics into a powerful position such as the Court allows the entirety of the Judiciary Power of the United States to be swayed one way or the other, depending on the political beliefs of the majority. With a majority of conservative Justices, the Supreme Court will no longer be apolitical; rather, the Court’s power will be used to uphold conservative and right-wing beliefs. A politicized Supreme Court is a dangerous Supreme Court.
The actions of the Republican-led Senate have shown that Senators are not concerned about fairly filling Supreme Court vacancies. Rather, they are more focused on creating and maintaining a politically-friendly majority on the Supreme Court. In doing so, the Senate has politicized the Supreme Court, which goes against the very reason the Court was created. The Supreme Court must remain apolitical but, with yet another conservative nominee on track to be confirmed, it does not appear the Court will become apolitical any time soon.
References
[1] The White House of Barack Obama, “President Obama’s Supreme Court Nomination,” The White House, accessed October 7, 2020, https://obamawhitehouse.archives.gov/node/354161.
[2] Matthew S. Schwartz, “‘Use My Words Against Me’: Lindsey Graham’s Shifting Position on Court Vacancies,” NPR.org, September 19, 2020, https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/19/914774433/use-my-words-against-me-lindsey-graham-s-shifting-position-on-court-vacancies.
[3] “Judicial Vesting Clause: Doctrine and Practice | Constitution Annotated | Congress.Gov | Library of Congress,” accessed October 23, 2020, https://constitution.congress.gov/browse/essay/artIII-S1-1-1-1/ALDE_00001175/.