The new politics of Supreme Court appointments

Abstract

1⁄2ll a vacancy on the Supreme Court, and for all his rhetoric about bipartisanship, he is clearly spoiling for a 1⁄2ght. Not only has Bush pledged to appoint justices in the mold of the Court’s most conservative jurists, but at the start of his second term he also renominated several controversial lower court judges whom Democrats had successfully opposed. Senate Democrats also show no signs of backing down. Their opposition to Bush’s appellate court nominees has hardly been as obstructionist as Republicans have claimed, but they did noisily contest several of his most ideologically extreme 1⁄2rst-term choices, once resorting to a 1⁄2libuster.1 Their rare unity on the issue, coupled with Bush’s resolve, all but guarantees a partisan brawl over a future Supreme Court nomination. Should such a showdown occur, it seems likely that antagonists will staunchly–and implausibly–deny that the nominee’s ideology is at issue. Despite the patently ideological nature of so many recent judicial appointment 1⁄2ghts, the participants now routinely profess to be assessing the nominees solely on their professional merits. This phony premise goes largely unchallenged in the news media–seemingly in an effort to uphold an unwritten rule that nomination 1⁄2ghts shouldn’t be waged on ideological grounds, lest the judiciary, the branch of government that’s supposed to stand above the fray of partisan politics, be politicized. A 1⁄2ctive discourse of appointments has thus emerged: a nominee’s advocates make his case in the ideologically neutral language of merit, as if the candidate’s views had no bearing on his selection, while critics 1⁄2nd extrapolitical reasons in which to root their objections –a reputed character flaw, the performance of some unsavory act way back when, or some alleged lack of credentials. These rhetorical sleights on both sides have solidi1⁄2ed the 1⁄2ction that ideological differences aren’t the issue. Yet for all the attention paid to recent nominations, little effort has been made to explain, historically, how this peculiar condition came to pass. In fact, at least 1⁄2ve trends converged in the late twentieth century to forge the current dynamic: the expansion of presidential power and the resulting desire to restrain it; the growing frequency of divided gov-