During the last few weeks, the country has been living through another momentous, and contentious nomination to the Supreme Court. On July 9, President Trump nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to succeed the retiring Anthony Kennedy. Almost immediately, the battle lines were drawn and we as a nation will bear witness to another exhausting round of political fighting and acrimony as the nominee is subjected to relentless assault and partisan barbs are exchanged all around. Are matters really supposed to be this way?
In the Constitution, the Supreme Court was created as the head of a judicial branch coequal in power to the legislative and executive branches. The Founding Fathers knew a strong and independent judiciary was essential to checking potential abuses of power. The Supreme Court grew into its role, and throughout our long and tumultuous history established itself in determining the ultimate constitutionality of many important and controversial issues.
To check this power of review, the other two branches of government were given control over who joined the ranks of the highest court in the land. The president was given the power to nominate, or propose a candidate. This candidate would then be submitted to the Senate, who would then use its power to advise and consent to either confirm or reject the proposed nominee. If confirmed, the judge would be formally appointed as a member of the court; if rejected, the process would have to start all over again.
This sounds like a balanced process in theory, and until a couple of decades ago many nominees were confirmed by large margins or even by voice vote, meaning there was no need to even record votes for or against. For example, the retiring Justice Kennedy, who was nominated to the court by President Ronald Reagan in 1987, received a confirmation vote of 97-0 in the Senate. By comparison, the most recent Justice to join, Neil Gorsuch, was confirmed by a vote of 54-45 after being nominated by President Trump last year, with only three Democrats voting in favor.
So what has changed? You may have heard about the “factions” or “blocs” that exist on the Supreme Court. Five justices have currently been appointed by Republican presidents including Justice Kennedy, and four by Democratic presidents. Increasingly, the justices vote in line with these blocs, as many contentious cases have resulted in narrow 5-4 votes. As many issues have stalled in Congress, (think abortion, unions, gay marriage and campaign laws), the Supreme Court is increasingly becoming the institution that decides policy over many of these sensitive issues.
Accordingly, more and more stakes are being attached to the Supreme Court. Every justice on the court appointed by an ideologically favorable president means a good chance the court will rule in the direction favored by that president and their political party. Justices are chosen more on their personal ideology rather than their adherence to the law and the Constitution.
This is, in my opinion, a troubling development for our nation. The Supreme Court is supposed to be a referee, not an additional player on a team. As political parties maneuver to try and place justices favorable to them on the Supreme Court, the nation as a whole loses. To protect the Supreme Court from becoming just another political institution, we need to put justices on it who will follow the law and make rulings in a manner consistent with the court’s authority. In the Constitution, Congress is charged with making laws, and the Supreme Court with ruling on their legality. If the Supreme Court can make law from the bench, we have no way of holding it accountable like with our elected Congressional representatives.
Thus, in the nomination of Judge Kavanaugh and any future nominees, what we should be looking for are judges who will rule with respect to the Constitution and the laws rather than any personal or political ideology. Only then can the Supreme Court return to being the neutral arbiter it’s supposed to be.
Connor Kockler is a student at St. John’s University. He enjoys writing, politics and news, among other interests.