Many things can be said about our Supreme Court Chief Justice, John Roberts, but I would venture to say that no one has ever described him as being prophetic. Last month in a speech he gave at New England Law, a private law school in Boston, he spoke to the subject of the nomination and confirmation process of “Supremes.” Unless he does indeed have the gift of prophecy, he couldn’t have known that the subsequent, sudden death of fellow Supreme, Anton Scalia, would thrust, if only momentarily, this issue to the forefront of the presidential campaigns.
Both of my children and my husband believe that I do indeed have some eerie “gifts.” But, alas, that subject will have to wait for another column because this one is about the timing and the message conveyed in the chief justices’ remarks.
Until recently, qualified nominees were confirmed by both parties rather smoothly. Scalia, arguably a Democrat’s worst nightmare of a justice, was confirmed by a vote of 98 to 0. Ruth Bader Ginsburg, an equally bothersome thorn in the side of Republicans, was confirmed by a vote of 96 to 3.
Then something changed. The Constitutional requirement of being qualified to sit on the bench was no longer enough. An appointee had to pass a litmus test on ideological issues as well. Contentious, sometimes vicious, hearings ensued. And the chief justice remarked that “the process is not functioning very well. The last three justices should have sailed through. Look at my most recent colleagues, all extremely well qualified for the court and the votes were, I think, strictly on party lines for the last three of them…that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.” He told the audience.
At the risk of being insulting, I have to respond to his remark with an eye rolling DUH!
He went on to say that ugly confirmation fights damage the Supreme Court’s legitimacy and authority. “We don’t work as Democrats or Republicans, and I think it is a very unfortunate impression the public might get from the current confirmation process.”
So, we now have the hoopla over the President’s appointment to fill the vacancy on the court. Opponents are insisting that Judge Garland shouldn’t even be considered due to his appointment coming during the President’s last year in office. There is no such restriction in the Constitution.
I find this argument almost comical since Scalia (whom Garland would replace) was defined by his strict Constitutionalist convictions which would make him ardently opposed to restricting the President’s constitutional right of appointing a nominee to the court and having that nominee go through the approval process. Of course, I do not presume to speak for the dead, but his stances on issues of constitutionality are on the record.
Only time will tell if Judge Garland gets a fair hearing … or any hearing at all.
Some not-so-funny things are happening on the way to the Supreme Court!