[2018 feels like
it’s been about ten years in one, but it’s almost done, so this week I’ll
AmericanStudy a handful of the biggest stories from the year that was. I’d love
to hear your year in review thoughts as well!]
On what’s always
been true about the Supreme Court, and what’s frustratingly new.
Back in those
halcyon days of February 2016, when none of us (other than federal judgeship
completists and his immediate family) even knew the name Merrick Garland yet, I
wrote a piece
for the Huffington Post on the
Supreme Court’s foundational political nature. I’ve learned a lot more about
Supreme Court history and precedent in the last couple years, as unfortunately
have nearly all of us, but I nonetheless stand by my main point from the piece:
that since George Washington and the first nominees to the Supreme Court, that
highest judicial body has been tied to, influenced by, and part of the nation’s
political concerns and debates. We like to think of the Court as outside of or
above politics, and of course the justices’ lifetime appointments do mean that
once on the bench they are not as directly tied to immediate political concerns
or changes in government or the like (although Clarence
Thomas’s various conflicts of interest reflect another kind of definite
such tie); but these are human beings, nominated by presidents and confirmed by
Congress, and in those and many other ways have always been part of the partisan
and political realities of their moments.
What followed
Obama’s early 2016 nomination of Garland to that vacant Court seat was
nonetheless unprecedented, and set us on a course that has continued to feature
uncharted territory in many ways over the nearly three years since (and not at
all limited to the Supreme Court, of course). That starts with Senator Mitch
McConnell and the Senate GOP holding the seat vacant for the remainder of Obama’s
term (nearly a year after the Garland nomination), an action that McConnell
erroneously attributed to normal election-year contexts but in reality
violated longstanding precedent and norms. They succeeded at holding the seat
until the aftermath of Donald Trump’s 2016 election, and then helped Trump
usher through his own nominee, Neil Gorsuch, thus ensuring that the seat would
be held by an
extreme conservative rather than the moderate justice Garland promised to
be. The treatment of this seat thus represented a deviation from the Court’s
histories on multiple levels, and brought partisan politics into the nomination
and confirmation process in a far fuller way than had been the case with prior
nominees and justices (which is particularly ironic since McConnell
had initially accused Obama of playing politics with the seat and Court,
prompting my HuffPost piece in the
first place).
Trump’s second
Supreme Court appointee, Brett Kavanaugh, reached the Court in a seemingly more
traditional manner: a sitting justice, Anthony Kennedy, announced his
retirement; Trump nominated Kavanaugh to replace him; and after a contentious confirmation
debate the Senate voted to confirm Kavanaugh as the newest Supreme Court
Justice. Details that Trump
had worked behind the scenes for months with Kennedy to coordinate his
retirement were less typical, however, and indicated that this seat was
likewise being treated as an entirely political pawn. But it was the
confirmation process itself which represented a thoroughgoing break from Court and
American history: in the past nominations for the Court or other high offices
have been withdrawn for such relatively minor revelations as smoking
marijuana (in 1987!) or hiring an undocumented worker as a nanny;
whereas Kavanaugh was credibly accused by multiple women of sexual assault, and
not only was his nomination not withdrawn but he was confirmed for the nation’s
highest Court and one of its highest civic honors. I’m well aware of the echoes
of the Clarence Thomas confirmation, but the Kavanaugh accusations are many
steps beyond those directed by Anita Hill at Thomas, and reflect one more step
in the politicization (and, to my mind, demeaning) of the Supreme Court.
Last reflection
tomorrow,
Ben
PS. What do you
think? 2018 reflections you’d share?
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