By Brian Bohl
Supreme Court Justice David Souter’s retirement is bringing a tired argument back into the lexicon of political commentary and tired partisan rhetoric.
Be prepared for the deluge of warnings regarding the possible appointment of an activist judge. Warnings about judicial philosophy are sure to arise from conservatives worried about who President Obama will select to replace Souter.
But the nomination process will also provide an interesting test case into how faithful Democrats and Republicans adhere to their public remarks. After all, it’s been less than four years since Chief Justice John Roberts went through his confirmation process while Justice Samuel Alito went through his in 2006.
At the time, Republican leadership, led by President Bush, depicted Congressional scrutiny as a negative and put heavy public pressure on the Senate to quickly confirm both candidates.
Terms like obstructionists were used preemptively to describe Democrats who didn’t grant an immediate up-or-down vote on Roberts or Alito. Meanwhile, the Democratic argument for keeping the filibuster option open was to maintain the right’s of a slim minority party. Ensuring the integrity of the vetting process was also a major talking point. Now that the Democrats are in the majority, it will be interesting to see if the parties’ platforms are switched.
Alabama Republican Senator Jeff Sessions serves as a microcosm of that predicament. With Arlen Specter switching parties, Sessions is now the No. 1 Republican on the influential Senate Judiciary Committee.
In the past, Sessions has gone on record as saying judges should only face a majority vote and has also made his distaste well known for the practice of filibusters for judicial nominations. Will Sessions, and others who made similar comments in the past, remain true to their philosophies now that they belong to a party that is the opposition instead of the majority? It’s possible, but the line between an obstructionist and someone performing due diligence can sometimes be measured by party affiliation.
Democratic leaders like Vermont Senator Patrick Leahy should also be watched closely. In 2005, Leahy commented on Roberts’ nomination: “No one is entitled to a free pass to a lifetime appointment to the Supreme Court.” That’s a fair comment, but it should also be consistent now that a Democratic president is making the nomination.
Legal aptitude and experience, not party affiliation or empty charges of liberalism or conservatism, should be the criteria for which to base a decision on judicial nominations. President Obama owes it to the county to select the best person for the job, not someone who is a good compromise candidate.
That is no easy task, especially when pundits and other grandstanding politicians use terms like judicial activism as a scare tactic. Consider these preemptive words from Republican Senator Orin Hatch.
“We all know he’s going to pick a more liberal justice,” Hatch said on George Stephanopoulos’ show. “Their side will make sure that it’s a pro-abortion Justice. I don’t think anybody has any illusions about that. The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled and yet give justice to those who may not be…”
By saying that before the nomination, Republicans are in line to depict any candidate as fitting that description. Four years ago, the sides were switched and Republicans were screaming that anything less than an up-or-down vote for a presidential nomination was tantamount to playing politics with the highest court in the land.
Yet the Supreme Court’s importance does not fluctuate based on what party controls the legislative and executive branches. Both Republicans and Democrats should fulfill its only role in this process: confirm the candidate if he or she is qualified or reject the nomination if his or her judicial aptitude is not up to a sufficient level.
Brian Bohl is a Master’s candidate for journalism. You may e-mail him at
