POLITICS AS USUAL

Posted on | by Ed

I am a realist about what I do for a living. At no point do I believe that students are going to remember in ten years 90% of what they learn in my classes. Instead, the goal is to get the 10% to stick somehow. They won't remember how the House leadership is structured but hopefully they'll remember that the fundamental problem in Congress is that what is best for each individual member does not add up to the best outcome for the nation as a whole. They won't remember the different types of elections that coexist in our system, but hopefully they'll remember that people vote when the costs are sufficiently low and it makes them feel good to do it.

When I talk about the courts (in the context of an Intro class, we have exactly one week to devote to a large number of subjects, so withhold your "Look how smart and great at your job I am" comments laden with minutiae) I know that there isn't much they will remember. One thing I try to emphasize, though, is that the Supreme Court is political. It is inherently political and nobody should expect that it, or any other institution made up of human beings, is a completely neutral and fair-minded arbiter. It is somewhat baffling to see these occasional "OMG guys did you realize the Supreme Court is basically driven by politics and ideology?" pieces in the media as though anyone out there paying the slightest bit of attention does not already realize this.

The Supreme Court is, was, and always will be political for two basic reasons.
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One is that the process in which the justices are chosen is political.
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Presidents select the person closest to themselves in ideology from a set of boundaries established by the ideological makeup of the Senate at that moment. Likewise, the Senate, especially if controlled by the opposite party, pushes as hard as it can to convince the president that its willingness to confirm the appointee has a limit. Barack Obama looks at the Senate and asks himself if it's worth it to try to nominate the most extremist liberal he can find when he could appoint someone who is still really liberal but will be confirmed with flying colors.
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Of course it isn't, and with a Republican Senate the person he would choose would have to be less liberal still. Political reality dictates the choices.

Second, the issues the Court is asked to resolve are political. Irrespective of one's preferences, when asked to resolve political questions the institution becomes unavoidably political. This has gotten much worse in recent years as the actual political process – the one with elected officials who do everything in their power to avoid going on record to vote on highly contentious issues – punts issues to the judiciary to decide. Gay marriage? Why cast a vote in Congress that could be a liability when you can just wait for a series of legal decisions to sort it out? The Supreme Court is tasked in a wink-and-nod way with resolving a lot of issues that are politically unfeasible for Congress or even State Legislatures to tackle. This suits most elected officials just fine, abdicating responsibility and then reaping the benefits of pissing and moaning about whatever the courts decide.

If anything, today's court is less explicitly made up of partisan hacks than it was for most of our history. Check out some of those Civil War and Reconstruction-era courts if you doubt that. We don't have to be thrilled with the political role the Supreme Court plays but we certainly shouldn't be surprised by it.

17 thoughts on “POLITICS AS USUAL”

  • geoff says:

    I'm still mad about the unpleasantness in 2000, just sayin'. Political is one thing, overlooking the law(s) entirely is quite another.

  • Dr. Mac says:

    Yes, but….. one should try to be objective…. simply for a little self-pride. Like, I can do my job…. I am not a fucking ass-hat. I'm not, Mommy!

  • Talisker says:

    Well said, Ed.

    I'd add that it's highly unlikely Obama wants to appoint the "most extremist liberal he can find." He probably wants to appoint a centrist, non-radical Democrat like himself, as he has done in the past. The fact that the current Republican party considers anyone to the left of Genghis Khan an "extremist liberal" is a separate issue.

  • c u n d gulag says:

    It's still important that in 2016 we elect a Democrat as President, and a Democratic Senate.

    We can't afford to replace Judge Ginsberg with another Fascist. And then add other Whoreporatist Fascist.

  • Chicagojon says:

    And yet even though it has always been a a political/partisan world Supreme Court Justices used to be approved based on their merit and at least on paper had the full confidence of the Senate behind them. The confirmation process was a "we may not like your nominee, but we can't argue his credentials" and when it came time to vote it wasn't political theater. Stephen Breyer was confirmed with 87-9 votes, Ruth Bader Ginsburg 96-3, John Paul Stevens, Sandra Day O'Connor, & Antonin Scalia were all 98-0. Before that were Lewis Powell (89-1 but admittedly was Nixon's 3rd attempt) and Harry Blackmun (94-0).

    From 1971-1994 the only contentious votes were for Rehnquist (68-26 as a justice, 65-33 as the chief justice), Bork (he was Borked), & Clarence Thomas (52-48). I think history will agree that Rehnquist was certainly partisan and there were reasons to be concerned, but he proved to be a more than worthy justice and chief justice. Of course Clarence Thomas is the worst justice of the 2nd half of the 20th century and I have confidence that he'll top the list for the & 21st century.

    The last 4 nominations were Roberts (78-22), Alito (58-42), Sotomayor (68-31), & Kagan (63-37). Harriet Miers was also withdrawn (thank god). If the Senate is insistent on turning nominations into a political circus for "both sides" of this one party two party system we should take the authority away from them. If I never see another confirmation hearing like these last 4 again it will be too soon. Watching Fox News is more productive than many of the questions asked at confirmation hearings and Roberts has provided the roadmap for the future to lie your way through the hearings and then do whatever you want once confirmed.

    Oh, and term limits obviously will be at least a partial solution to partisanship, senility on the bench, & political theater.

  • Emerson Dameron says:

    As much as I respect Ginsberg, it drives me nuts that she waited around to be replaced by a Republican president. She can barely stay awake, and we're headed for two more years of right-wing gridlock followed by eight years of the Jeb Bush Administration. Why the fuck didn't she step down in 2009?

    @Talikser:
    Precisely. Obama thinks that Thomas Friedman and David Brooks are smart, level-headed people. His neoliberal centrism isn't a bug, etc. The notion of him as a radical red doesn't exist outside Sean Hannity's jerkoff fantasies.

  • Xulon says:

    I like to remind my right-wing, "pro-life" friends that the Supreme Court has been majority Republican appointed since the Nixon Administration. All those decisions they hate – including Roe v Wade – were decided by Republican majorities.

    I also agree that the idea that Obama might want to appoint an "extremist liberal" to the court is laughable. After 6 years of center-right "moderation" and "I'm the president of everybody" capitulations to the Republicans it is still claimed that Obama is a liberal? That's playing into somebody's hands.

  • Joe Roth says:

    @Skepticalist: even better, appoint someone who goes to the same parties as a certain senior senator from the Palmetto State.

  • anotherbozo says:

    This is one of maybe 500 posts I've read here that I'd consider more instructional than entertaining. Not Ed grousing amusingly but Ed providing perspective. Not at all a negative thing; entertainment is, well, enjoyable, but instruction is can be passed on. It led me to think Ed might profitably one day chair an EdX or Coursera class, illuminating thousands of enrollees.
    Then it occurred to me that this is a better format for him, just about ideal. So if I think he should reach more people, I should tell more of them about this blog. It may have thousands reading it anyway.
    Things are fine here, just as they are.
    Unlike almost everywhere else.

  • Anonymouse says:

    If it helps, Ed, the biggest thing I got out of college was how to think critically. High school was simply regurgitating facts without reflecting on them, but college (at the end of the Cold War era) was where I learned to analyze. You're doing your students a great service by exposing them to the WHY things happen, instead of just THAT they happen.

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