There was a time when, unless very unlucky, a qualified nominee to the Supreme Court who had no embarrassing episodes in the past could expect to be confirmed.
Times have changed. From the moment George W. Bush assumed the presidency, Democratic senators and liberal activists and law professors have been setting the stage for obstructing his judicial nominees. That a nominee is highly qualified and well within the mainstream of the president’s party is said to be not enough. Senators now threaten that any nominee must be ideologically acceptable, and acceptable not merely to the president’s party but to the opposition party–even when that party holds only the minority of the seats in the chamber. Senators and activists now call for a “consensus candidate,” someone who could have just as easily been named if a Democrat had won the White House.
In preparation for any Supreme Court appointments to come in Ronald Reagan’s second term, Harvard law professor Laurence Tribe published a book, God Save This Honorable Court, arguing that the Senate should reject any presidential nominee who did not share Tribe’s vision of a “just society” or who might upset the “overall balance” of the Court. After the 2000 presidential election was decided, University of Chicago law professor Cass Sunstein similarly advised Democratic senators that they must insist that any presidential nominee create “more balance” on the Court to counter its “heavy right wing.” Sunstein’s ideal? He modestly suggests the Supreme Court of the 1940s, when every justice was either a New Deal Democrat or a liberal Republican. “Balance,” it appears, is in the eye of the beholder. Senator Charles Schumer has likewise suggested that “it’s all a question of balance”; the “court as a whole” should be taken into consideration. An “excellent Supreme Court” would have “one Scalia and one Brennan.” In Schumer’s history of America, no president has “sought to imbalance the courts” like President Bush has done.
This new call for “balance,” perhaps supplemented by doctrinal litmus tests to ensure that the nominee falls on the correct side of the scale (that is, the left side), has little to recommend it and no basis in our constitutional history. If the ideal is a balanced Court, then it is hardly obvious what the correct equilibrium point should be. Sunstein looks at the current judiciary and sees a complete right-wing takeover. Conservatives understandably look at recent Court decisions and wonder what Sunstein is talking about. Every change of personnel on the Court alters the balance of views there, sometimes subtly and sometimes radically. No justice replicates the views of his or her predecessor, and it would be a strange appointments process that sets out to find such a potential justice.
Rather than seeking balance, presidents have always sought to pick justices who would, by the president’s lights, get the Constitution right. It would be perverse for the president to name someone for the Court who he thought was mistaken in his approach to the Constitution but who might diversify the bench. Faced with a Court dominated by Abraham Lincoln’s appointees, should President Ulysses Grant have looked for a secessionist to add to the Court? Inheriting a Court controlled by former officials from Franklin Roosevelt’s administration, should President Harry Truman have thought that what was needed was a justice who believed the New Deal was unconstitutional? Or when John F. Kennedy was pondering a vacancy on the Warren Court, should he have thought that what the Court really needed was a justice who would have been willing to dissent from Brown v. Board of Education? By this standard, Lyndon Johnson certainly should not have added Thurgood Marshall to the Warren Court’s solid liberal majority, but instead should have been looking for Robert Bork. Unsurprisingly, those presidents–and every other–did not look for justices who would help balance the Court. They looked for justices who would faithfully interpret the Constitution, and they did not hesitate to reinforce a judicial majority that they thought was moving in the right direction or to try to subvert one that they thought was in constitutional error. The purpose of the Supreme Court is not to represent all available views, but to correctly interpret the requirements of the Constitution, and presidents rightly view it as their obligation to choose justices who they believe will do that.
Although the initial reaction in the Senate to the nomination of Judge John Roberts to the Supreme Court has been somewhat cordial, the committed opposition, both in and out of the Senate, is working hard to make confirmation difficult. Regardless of whether they are successful in generating controversy around this nominee, they can be counted on to make the same arguments, with renewed force, if any additional vacancies appear on the Court. Such arguments should be resisted, not only because they are designed to frustrate the ability of the president and the majority of the Senate from placing justices on the Court who share their constitutional vision but also because the goal of seeking balance on the Court is the wrong one at which to aim. The goal should be to place a justice on the Court who can be counted on to get the Constitution right, and being balanced is not the same thing as being correct.
– Keith E. Whittington is visiting professor of law at the University of Texas at Austin and professor of politics at Princeton University.