The death of Justice Ruth Bader Ginsburg has set off a partisan squabble over filling her seat on the Supreme Court. The founders could not have meant by giving the Senate the power to advise and consent to judicial nominees that Senators would declare in advance of a nomination that they will support or oppose the eventual nominee.
Whatever the result, and whether one would prefer a justice nominated by a Republican or Democrat, the certain outcome of this partisanship is a blow to the place of the Court in the American political system and as a neutral interpreter of the law. It is telling that both Justices Antonin Scalia and Ginsburg bemoaned the current confirmation process, each expressing doubt that they could now be confirmed. (Both garnered over 90 votes). A system that may have denied either or both of these judicial giants a seat on the Court is a broken system.
Much has been said of the friendship between Justices Ginsburg and Scalia. It was a friendship based amongst other things on the principle that intellectual disagreement even over the most hotly contested fundamental principles was not evidence of an underlying moral flaw. It is a lesson our political system would do well to learn and put into practice as politicians contemplate filling the huge gap left by Justice Ginsburg’s death.
It is too late to entirely undo the damage that has already been done. But it is urgent for the long-term health of the Supreme Court as an institution, for the rule of law as distinct from politics and indeed for the Constitution of which the Court is the most visible guardian, that both Democrats and Republicans make an effort to depoliticize the nomination process.
We have said before that a sitting President always has the power to nominate a Justice and the Senate the power to confirm. But having a power does not mean its use is necessarily wise or desirable. In the present hyper-partisan environment, when voting for President has already begun, we believe that both Republicans and Democrats would benefit if the confirmation process were delayed to avoid further erosion of the Court’s credibility. Equally important, there should be no talk of expanding the Court to achieve results that some think desirable.
The urgent task before the country is to decouple the courts, and especially the Supreme Court, from raw partisan politics. Supreme Court appointments are a Presidential prerogative. They should not be fodder for presidential campaigns.