Tuesday, March 22, 2016

John Roberts Criticized Supreme Court Confirmation Process, Before There Was a Vacancy


MARCH 21, 2016

WASHINGTON — Last month, Chief Justice John G. Roberts Jr. delivered some blunt remarks about the Supreme Court confirmation process. The Senate should ensure that nominees are qualified, he said, and leave politics out of it.

The chief justice spoke 10 days before Justice Antonin Scalia died, and he could not have known how timely and telling his comments would turn out to be. They now amount to a stern, if abstract, rebuke to the Republican senators who refuse to hold hearings on President Obama’s nominee, Judge Merrick B. Garland.

Some people are hoping that the chief justice will speak out again, and more directly, addressing the actual nomination of an actual nominee.

It was not long ago that qualified nominees coasted onto the court, Chief Justice Roberts said last month, in a speech at New England Law, a private law school in Boston. In 1986, Justice Scalia was confirmed by a vote of 98 to 0. In 1993, Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3.

These days, Chief Justice Roberts said, “the process is not functioning very well.”

The last three justices should have sailed through, too, he said. He was referring to Justice Samuel A. Alito Jr., appointed by President George W. Bush, and Justices Sonia Sotomayor and Elena Kagan, appointed by Mr. Obama. Forty-two senators voted against Justice Alito, 31 against Justice Sotomayor and 37 against Justice Kagan.

“Look at my more recent colleagues, all extremely well qualified for the court,” Chief Justice Roberts said, “and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

If Justices Sotomayor and Kagan were “extremely well qualified for the court,” it is a safe bet that Chief Justice Roberts has a similarly high regard for Judge Garland, with whom he served on the United States Court of Appeals for the District of Columbia Circuit.

“Anytime Judge Garland disagrees, you know you’re in a difficult area,” Chief Justice Roberts said at his own 2005 confirmation hearing.

In last month’s remarks in Boston, the chief justice raised a second concern: Ugly confirmation fights damage the Supreme Court’s legitimacy and authority.

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

“We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

Chief Justice Roberts was speaking in general terms, of course, and he has not addressed Judge Garland’s nomination or the possibility that the Supreme Court may have just eight members for a year or more. Perhaps he should.

“That would be a John Marshall moment,” said Akhil Amar, a law professor at Yale, referring to the chief justice most responsible for the Supreme Court’s surpassing stature and central role in American life.

A statement from Chief Justice Roberts, who was appointed by Mr. Bush, could demonstrate in a concrete way that the court is not, as he put it in Boston, made up of Democrats and Republicans.

“He’d be crossing party lines, so to speak,” Professor Amar said, “and this would be a third extraordinary moment of John Roberts showing that he is no partisan.” (The first two moments, Professor Amar said, were Chief Justice Roberts’s votes to sustain the Affordable Care Act, Mr. Obama’s signature legislative achievement.)

Professor Amar added that “nothing prevents the chief justice from expressing his very high regard” for Judge Garland. Indeed, he said, there is recent precedent for judicial endorsements of a Supreme Court nominee. In 2006, seven appeals court judges testified on Justice Alito’s behalf at his confirmation hearings.

Barry Friedman, a law professor at New York University, said Chief Justice Roberts could play a singular role. “It’s the chief justice’s job to guard the institutional integrity of the court,” he said. “It would be appropriate for the chief justice to remind the coordinate branch of government that they are leaving the Supreme Court in an awkward state for a couple of terms if they don’t act.”

A long confirmation fight without so much as a hearing would hurt the Supreme Court by elevating political considerations over the rule of law, said Lori A. Ringhand, a law professor at the University of Georgia and an author of “Supreme Court Confirmation Hearings and Constitutional Change.”

“Law matters to the court, and it is the law that is going to get lost in the media frenzy,” she said. “Interest groups and partisans will dive in with no holds barred, but neither the nominee nor the senators will have the opportunity to talk through important issues at stake in the relatively more disciplined format the confirmation hearings can provide.”

In 2007, speaking to a bar group in Memphis, Justice Scalia reflected on what he said had become “a controversial, bitter confirmation process.”

“I was confirmed 98 to 0,” he said. “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today.”

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