In light of Donald Trump’s nomination of Judge Brett Kavanaugh to serve on the Supreme Court of the United States, this is a plea to the principled and moderate Republican and Democratic members of the United States Senate. Senators such as Susan Collins (R-Maine), Heidi Heitkamp (D-N.D.), Lisa Murkowski (R-Alaska) and Joe Donnelly (D-Ind.) must act courageously and wisely at this critical moment in our nation’s history to preserve the integrity and credibility of our Supreme Court.
The Supreme Court is essential to our constitutional system. It must stand as a politically neutral body that faithfully and independently interprets and applies our Constitution. As James Madison observed at the very founding of our nation, “independent tribunals of justice” are the “guardians” of our Constitution, and they must “be an impenetrable bulwark” that will “resist every encroachment” upon the fundamental norms of our democracy.
At this moment, we face a crisis that threatens to undermine the partisan neutrality that is essential to enable the Supreme Court to meet this core responsibility. In the past, at similar moments, members of Congress have boldly stood up to protect the integrity of the Supreme Court. The best example of this occurred in 1937 when Democrats who controlled the Senate defeated Democratic President Franklin Roosevelt’s “court-packing” plan, which was designed to enable him to appoint additional justices who would vote to uphold the constitutionality of his policies. As former Chief Justice William Rehnquist once observed, at this historic moment it was the courageous and principled members of the United States Senate “who stepped in and saved the independence of the judiciary.”
What enables the Supreme Court to fulfill its fundamental responsibilities in our constitutional system is the understanding that it is dedicated to interpreting and applying the Constitution and the laws of the United States in a nonpartisan manner. Presiding during the era of the Warren Court in the 1950s and ’60s, for example, were justices Democratic presidents appointed ― such as Felix Frankfurter and Byron White ― who regularly took what were then seen as “conservative” positions, and justices Republican presidents appointed ― such as Earl Warren and William Brennan ― who often took more “liberal” positions. The partisan interests of the presidents who appointed these justices did not determine how they would fulfill their constitutional responsibilities.
In succeeding years, President Richard Nixon appointed four “conservative” justices to the court, and although they tended to take more conservative positions than their predecessors, in a broad range of cases they endorsed quite moderate and even liberal positions ― including in Roe v. Wade, in which Chief Justice Warren Burger and Justices Harry Blackmun and Lewis Powell joined the court’s landmark decision protecting a woman’s fundamental right to decide for herself whether to bear a child.
In more recent years, though, a succession of Republican presidents have attempted to stack the court with ever-more-rigidly conservative justices who would consistently toe the party line. Not all of these appointments worked out as planned, though. Exercising judicial independence, Republican-appointed justices like John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy and David Souter often rejected hard-line “conservative” positions and voted in ways that disappointed those who had appointed them, even in cases involving core Republican positions on issues such as gun control, abortion, gay rights, campaign finance reform and Bush v. Gore.
Determined, though, to have their way, Republican presidents have managed to appoint a string of hard-line conservative justices. The very presence of these justices has normalized a set of views that were once rightly regarded as wholly outside the mainstream of legal thought. Indeed, among the legal profession, those views remain to this day outside the mainstream of legal thought. But defying the long-standing and sensible views of their profession, these ideologically selected justices have steadfastly embraced a remarkably consistent set of highly partisan results. And in the court’s most important, controversial and ideological cases, Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito and now Neil Gorsuch have almost without exception voted in a manner that enforces the political positions of the Republican Party.
Decisions reached with those five justices in the majority will be the 'law,' but they will be seen throughout the legal system as highly partisan and illegitimate.
Despite claims of “originalism,” “judicial restraint” and “calling balls and strikes,” these justices, in critically important cases dealing with gun control, gay rights, abortion, minority voting rights, campaign finance reform, public employee unions, gerrymandering, affirmative action and most recently President Trump’s travel ban, have almost invariably voted in precisely the way that conservative Republican legislators would vote on these very same questions. And, frankly, that is precisely why they were chosen.
My central point here, though, is not to criticize these justices, who no doubt believe they are deciding these cases correctly, nor is it to argue that Brett Kavanaugh is unqualified to serve on the court. It is, rather, to point out that the Supreme Court has become increasingly partisan in recent decades in a way that seriously undermines its independence, its integrity and its credibility.
The increasingly partisan nature of the court is evident in changes in the confirmation process over time. In the 25 years from 1969 to 1994, the average number of negative votes in the Senate for confirmed Supreme Court nominees was 10. In the almost 25 years since 1994, the average number of negative votes has been 37. This illustrates the extent to which the confirmation process has become politicized, a development that reflects the increasingly partisan nature of the process.
And so now we come to the current situation. If Trump’s nominee is confirmed on an essentially party-line vote in the Senate, especially in the aftermath of Republicans’ unprincipled refusal to confirm Merrick Garland in order to bring about precisely this situation, this will mark the end of even the pretense of a nonpartisan, nonpolitical Supreme Court. It will undermine the credibility and integrity of the court and its decisions for decades to come.
The unambiguous purpose of the recent manipulations of the confirmation process has been to undermine that process in a determined effort to install a highly partisan five-justice majority. If this effort is successful, it will be a profound disservice to our nation and to our constitutional system. Decisions reached with those five justices in the majority will be the “law,” but they will be seen throughout the legal system as highly partisan and illegitimate ― as the result of a complete betrayal of what the framers of our Constitution sought to achieve when they created the Supreme Court more than two centuries ago.
So, what should the principled, moderate and wise Republican and Democratic members of the Senate to whom this essay is addressed do? They should refuse to confirm this nominee or any successor nominee unless a majority of both Republicans and Democrats on the Senate Judiciary Committee supports confirmation. What we need now is another Byron White, John Paul Stevens, Sandra Day O’Connor, Lewis Powell, Harry Blackmun, David Souter, Anthony Kennedy or Merrick Garland ― a justice who will take a thoughtful, independent and nonpartisan approach to constitutional decision-making. We need that today if we are to preserve the institution of the Supreme Court as a legitimate, credible and critical component of our constitutional system.
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago.