The Deference Due “Any Presidential Nominee”?

March 24, 2017
posted by Bob Bauer

Here is a striking sentence in the Washington Post editorial calling for Senate Democrats to refrain from filibustering the Gorsuch nomination:

We are likely to disagree with Mr. Gorsuch on a variety of major legal questions. This is different from saying he is unfit to serve. He deserves the deference due any presidential nominee.

The thought here is that “elections have consequences,” and presidents winning an election have a claim on some measure of deference to their nominees–all of them, including presidential nominees.

The problem is this: Judge Gorsuch is not just “any presidential nominee.” He is a nominee for the United State Supreme Court who could serve for four decades, or more, in this position of extraordinary power. It is possible to have the utmost regard for Judge Gorsuch or any Court nominee and question why, in the name of “deference,” members of one party would readily yield on any such appointment to the president affiliated with the other.

And, of course, the party leery of this power when not in control of the White House is more comfortable, when its political fortunes have improved, with its own brand of “judicial activism.” And why not?   On major, divisive issues –on privacy, abortion, race relations, campaign finance, and others–the Court is alone in its authority to give an answer and have it stick. The “Nine” Justices have exceptional clout. Not one is like “any presidential nominee.” Both parties know it and respond in the pursuit of their deepest interests and in satisfaction of the demands of their most committed, vocal constituencies.

But this is rarely admitted in the public debate. So surprise is expressed that a nominee so well-respected and “mainstream” as Judge Merrick Garland would be denied a hearing or vote. And, yes, this move was one of a kind, a disturbing development in Supreme Court power politics: But it was not unpredictable. For Republicans, even a modestly unfavorable shift in the Court after the passing of Scalia was worth fighting. The chances that they would do still better with victory in November was a bet they were fully prepared to make, and they are now trying to collect on it.

The failure to face up to or acknowledge the fact that Supreme Court nominees are not like any other has meant nominations and confirmations processes that too often ring false notes from beginning to end. The race is on to attack or defend a nomination with reference to a supposed “mainstream,” and the question is whether the nominee falls well outside, or comfortably inside, of it. It is not enough that the nomination would create a conservative or progressive majority, and that either one party or the other, and the electorate to which it answers, will come away with a big win or a big loss–and with consequences to last for many years. The nominee has to be categorized as a dangerous left-wing lunatic, or a cold-hearted right-wing robot; and the nominee tries to keep out of the line of fire by professing to have no ideologically tinged views and, by golly, to be only interested in calling them as he or she sees them.

A further result is that there is little interest in reforms that would rework these perverse incentives by taking some of the pressure off of Supreme Court nominations. Term limits for Justices could help. No more forty-year prizes; and eventually, once the cycle of limited terms is fully launched, at least one nomination in each administration.

Nothing like this is on the distant horizon. But being realistic about what is involved in these fights, which means abandoning the fantasy that a Supreme Court nominee is like any other presidential nomination to which deference is due, would be refreshing and a small step in the right direction.

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