Sunday, February 14, 2016

A Conservative Ponders Replacing Scalia

Daniel Larison comments on the plan by Repubican senators to block a new Supreme Court appointment:
The automatic rejection of a new nominee will leave the Court with a vacancy for a year. While there have been longer vacancies, keeping a vacancy open when it could be filled impairs the functioning of the Court unnecessarily. If the idea of letting the sitting president fill a vacancy on the Court is so horrifying, that should make us question the wisdom of lifetime appointments to the Court. It should worry us that the Court is so powerful that any change in its composition is viewed with such alarm. Another Obama appointment would shift the balance of the Court for a time, but it probably isn’t going to stay that way for long. Conservatives might also consider that Republican appointees have made up the majority of the Court for decades, and it still hasn’t done many conservative causes much good.

Senate Republicans are also taking a big gamble insisting that they won’t approve Obama’s nominee, since they may find in a year’s time that they are out of the majority and another Democrat occupies the White House. In their very public and immediate opposition to even considering Obama’s nominee, Senate Republicans may be unwittingly aiding the other party in the presidential election and in a number of close Senate races that they have to win to retain the majority.
I agree with all of this. I have many times heard progressives say that it would be good for the Democratic Party to lose some Presidential election or another, "except for the Supreme Court." The thought of another Republican appointee to the court is the one thing that will rally progressives to any Democrat, no matter how much they despise him or her.

That Supreme Court appointments matter so much in our system strikes me as a serious problem. Why are so many of our most important political issues decided by un-elected judges? I do understand that this is a product of our Constitutional system with its divided powers, and the federalism that leaves many policies to the states. But it bothers me that we leave things for the court instead of having them out in elections, partly because it is just easier. It is also elitist, and though I sometimes shudder at the foolishness of American voters (e.g., flag burning) I am still not comfortable with letting nine lawyers from Harvard and Yale overrule them.

Since we seem to be stuck with a very powerful court, I think changing the Constitution to give the justices fixed terms seems like a good compromise. The plan for 18 year terms, so each President appoints two, seems workable, although with such long terms there are still bound to be some deaths in office. But it seems we ought to do something. Maybe a long, ugly fight over this nomination will persuade a lot of people of that.

1 comment:

Shadow said...

The Court is too important for life time appointments yet decades of republican appointees hasn't done conservative causes much good. Which is it?

I think it would be a good idea to limit terms because we would get new blood more often. But precedent will still matter, and I don't see term limits changing the politics or the importance of the Court. There will always be some pressing case or cases in front of it when a vacancy is announced. Term limits would just increase the frequency of bickering and stonewalling. They could even schedule and strategize around upcoming vacancies and less might get done as a result.

We'll survive an extended vacancy on the Court just fine. I remember when Nixon was about to resign under threat of impeachment and conviction. The speculation was the world was going to end. The Soviets might attack. The Country will go in the dumpster. A total crisis unfolding. Then Nixon resigned and it all went rather smoothly. And those were more troubling times than those we live in now.

I worry much more about extended vacancies on lower courts -- where most of the work gets done -- and the expanding breadth and scope of Executive Orders. Keep this up and soon, like with war, the president will assert he doesn't need congress to do all sorts of things.