September 7, 2012
Election Likely To Tip Supreme Court Balance—A Commentary by Eugene R. Fidell
The following commentary was published in the Hartford Courant on September 7, 2012.
Election Likely To Tip Supreme Court Balance
By Eugene R. Fidell
As the country enters the home stretch for the 2012 presidential campaign, it is critical that voters focus on the impact of the election on the federal courts. We have some serious problems on our hands that should be part of the political conversation that will be in high gear from now until Election Day.
First, the U.S. Supreme Court has fallen into a kind of stalemate, with many important cases turning on one-vote margins. Theoretically, there should be no concern about 5-4 decisions in principle, but decisions that turn single justices into "swing justices," whether it is Sandra Day O'Connor (as many thought before she retired), Justice Anthony M. Kennedy, or, now, Chief Justice John G. Roberts Jr., 5-4 decisions do not foster public confidence in the administration of justice. Both sides of the issues may be fairly arguable, but the voters are unlikely to study the decisions themselves, as opposed to viewing them through the filter of media coverage, which may be simplistic and at times (as in some of the hair-trigger initial coverage of the Affordable Care Act decision) incorrect.
Another vice of 5-4 decisions is that they tend to encourage justices to stick to their guns, refusing to recognize established legal precedents, and tempting those with dissenting views to stand their ground in hopes that personnel changes may lead to a different outcome if the issue is presented again. Justices have complained in the past that mere personnel changes do not justify a fresh look, but experience teaches that this is always and inevitably a possibility. Thus, 5-4 decisions inherently have an unsettling effect on laws based on previous judicial rulings.
On the lower federal courts, far too many vacancies remain unfilled. If nothing else, the slow pace of the confirmation process means that many highly qualified potential nominees who are in private law practice are effectively disqualified because they cannot put their law practices on hold for protracted periods.
This brings us to the election. Whoever occupies the White House for the four-year period starting Jan. 20 is likely to have one or more opportunities to appoint a justice and, given the 5-4 pattern, thereby potentially shift the direction of American jurisprudence.
Because President Barack Obama has already made two appointments, the electorate has some idea of what second term (if there is one) Obama appointments would look like, although there might be a question about whether the pattern of Ivy League appointments would continue. If Gov. Mitt Romney wins, voters ought to inform themselves as to what his Supreme Court appointments would likely be. His advisers on the subject include Robert Bork, whose own nomination to the court was rejected by the Senate in 1987. Perhaps the campaign can result in both candidates offering meaningful insight into their thinking on Supreme Court nomination standards.
This is important. Some broadening of the experience base of the court would be desirable. Previous service as a federal judge is not essential to service on the Supreme Court. Elected federal and state officials (including state judges, such as Justice O'Connor) often have important insights. Similarly, sustained experience in private practice or teaching should be part of the mix. Above all, though, this topic should be part of the nation's election-year discourse.
This brings us to the U.S. Senate, which must confirm federal judicial appointments. One of the most unfortunate aspects of the dysfunctionality of the Congress as a whole is the corrosive hyper-partisanship that has led to an excessive number of vacancies on the federal bench and a narrowing of the band of individuals who are otherwise qualified to serve, so that only "safe" nominations are sent up by the White House.
This is a problem for the occupant of the White House whenever the majority, or under present rules even a near majority, of the Senate is of the opposite party. The presidential candidates should be pressed during the debates for details as to what they will do to improve the confirmation process. At the same time, a third of the Senate seats will be on the ballot; candidates for those positions as well should be pressed for their views on how to break the logjam. Pious assurances that presidents will only nominate and the Senate will only confirm "strict constructionists" and denunciations of "judicial activism" are not enough.
Eugene R. Fidell teaches at Yale Law School.