I have heavily disliked politicization of judicial nominations. Familiar readers know I left the Democratic Party while a young professor as one of a vanishing breed of conservative Democrats over the sabotage of Robert Bork's nomination to SCOTUS. The odd thing today is as my libertarian views have emerged, I have become more critical of his infamous inkblot discussion in reference to the ninth amendment, in essence a proxy for unenumerated individual rights. I am more skeptical of the rights of the tyranny of the majority to undermine individual rights. (For a fuller expression of my perspective, see here.)
Now I have mixed feelings over application of the Biden rule (involving delaying SCOTUS nominations in a Presidential election cycle). Generally speaking, I don't like the politicization of nominations, including the notorious nominations of Bork, Thomas, and Kavanaugh, where all 3 men were personally attacked, especially over dubiously evidenced sensational allegations.
From a Constitutional standpoint, the Trumpkins, wanting to exploit filling the RBG vacancy for electoral advantage (probably one of the few rallying points of Trump's base, including conservative Republicans), are correct: there is no Constitutional "Biden rule" by which we defer judicial nominations in an election year. Trump is President (barring unusual circumstances) until January at worst and can nominate judges his full term(s). Similarly, the Senate can deliberate on those nominees, even in a lame duck session, but need not do so, as in Obama's replacement nominee to Scalia's seat, Merrick Garland (who I opposed).
But let's be clear: the Senate Republicans in 2016 did argue that the Scalia replacement should be nominated by the new President, and the Scalia vacancy was lengthier than the RBG vacancy, which has occurred during the general election campaign. The blatant hypocrisy will exacerbate already hyperpartisan gridlock in Washington; smong other things, "progressives" are threatening to pack the court and eliminate the legislative filibuster if and when they regain a Senate majority. (And notably GOP incumbent senators in AZ, NC, ME, and CO are in deep trouble this cycle; 538 currently rates a Senate flip better than even.) And replacing a key liberal justice is as serious as in 2016's replacement of a key conservative justice.
Jamming through a Supreme Court justice nominee is pure power politics and invites political blowback. The Senate GOP majority is thin and could easily flip (and if the GOP are viewed as politically opportunistic over filling the RBG seat, it could be a deciding factor in the November election). It's unlikely the House will flip back to GOP control; the last polling I've seen the Dems were just 4 seats away of clinching the House majority. So even in the unlikely event Trump would get reelected, he is facing odds of almost certainly dealing with an opposition Congress utterly opposed to Trump's second term agenda (whatever the hell that is) with both chambers stepping up oversight of his administration. He would no longer have a free pass on judicial nominations.
Just a side note over Dem threats to eliminate the filibuster and pack the court: first, that's a double-edged sword; it means a future Dem minority would lose its own leverage to shape legislation and see a repacking of the Court for purposes of the GOP agenda. Second, FDR's unsuccessful attempt to pack the court for political purposes backfired after breezing to a second term, one factor leading to heavy losses in the midterms, not to mention alienating the Southern Conservative Dems in the party. Third, it would undermine the appearance of the Court as an independent branch of government. Not to mention that the GOP has avoided eliminating the filibuster or packing the court while they've held the majority. I do not think answering conventional political warfare on the courts from the GOP with nuclear warfare from the Dems would gain or sustain political support.
Does that mean I'm satisfied with the Court? No; for one thing, as I've repeatedly discussed in earlier posts, I think that the Courts have largely abdicated scrutiny of individual rights in the aftermath of Carolene Products; the core of the case was Congress, influenced by Big Dairy opposed to filled milk products, forbade interstate transportation of said products, a clear violation of the free market principles underlying the Constitution (e.g., outlawing interstate protectionist tariffs), a crime against consumer choice. Even worse was the correlated Footnote 4, an evil doctrine that, among other things, basically assumes the legitimacy of federal legislation/regulation (assuming it is not out-and-out "irrational"). There are other criticisms I would make, including judicial intervention in policy matters ("judicial activism") (it's one thing to declare a law unconstitutional, another thing to outline what an acceptable law should be), erosion of federalism (state rights) and individual rights, the deference to the unaccountable administrative state, and the growth of the imperial Presidency at the expense of the Congress (including dubious executive orders, diverted funding, and non-defensive military operations.) I could go on indefinitely, but I think I've made my point.
I'm particularly opposed to lifetime appointments to judicial office for much of the same reasons I've opposed tenure for fellow academics. (Of course, my critics would argue that's easy for me to say, because I was never offered tenure in academia; that's true but misleading. I never went up for tenure, which generally is up for consideration, e.g., in the sixth year of appointment, although this can vary. I was in 3 appointments for 5 years, the last a temporary, non-tenure track position. Would I have accepted it if offered? Probably; who wouldn't like the related job security? (There are some nuances to tenure; for example, if a university decided to eliminate its MIS program, my job might go with it.) But, for instance, I might attract a job offer from a more prestigious program, maybe a position with a chair and/or funding asssociated with it. However, I worked with or for people I didn't respect at those 3 universities, and I didn't want to use contracts to stay at a school where I was no longer welcome. I felt my teaching record and scholarship spoke for themselves. I went on multiple campus visits after ISU and only got one belated offer, so obviously the market didn't agree with my self-confidence. But I had no intention "to retire" from scholarship upon gaining tenure like so many other tenured professors I encountered, who seemed defensive over my more prominent research record and implied I had done it at the expense of my students (utter bullshit; I did it at the expense of my social life). (To give a telling example, I recall a couple of classes at OLL where I needed to complete say X modules to get an A; I did more like X+15, because it wasn't just my professor's standards but my own. I knew I was capable of doing more, better work.) Similarly, I don't think a judge needs to be guaranteed 30-40 years of federal/other employment to guarantee objective decisions against fears of political blowback. I'm sure that ex-judges can head their own law firms, win appointments at law schools, and/or serve in a number of law firms, corporations, etc.
But as much as I tweeted (multiple times) sympathetic tweets on RBG's hospitalizations and her passing, I've also been critical of her staying on the court with serious health issues at an advanced age. I think I read she had recurrence of cancer something like 4 times over the past 20 years. Eight of those years were under the Obama Administration. If she wanted to be replaced by a fellow judicial progressive, she could have retired under Obama, who had Senate control through his second midterm. Why didn't she? I don't see a conclusion beyond her putting up her own career ahead of a favorable transition. I'm sure she had hoped to retire under President Joe Biden.
And of course I differed from RBG's general judicial philosophy on the Constitution, which reflected some of the criticisms I make above.
I started this essay before Trump announced his selection of Judge Amy Coney Barrett. After Justice Gorsuch's inspired nomination by Trump, this is probably my favorite Trump decision and one I enthusiastically endorse to succeed RBG. I have no doubt that the Democrats will go after Judge Barrett for precisely the reasons I'm thrilled. This is a double-edged sword for Dems, though; going after an accomplished mother of seven (like my own)? This makes a mockery of Dem ideological feminism. No, the selection won't sway me to vote for Trump vs. Jo Jorgensen, but I tend to support Presidents, even Obama, when they've done the right thing.
