Column: When the loss of Supreme Court Justice becomes a loss for justice overall

In this Feb. 19, 2016, file photo, people line up to pay their respects to the late Justice Antonin Scalia in the Great Hall of the Supreme Court in Washington, Friday, Feb. 19, 2016, where Scalia's body lies in repose. Scalia’svoluminous public information file is remarkably short on any details related to his health, just a report of minor shoulder surgery in 2003. (AP)

In this Feb. 19, 2016, file photo, people line up to pay their respects to the late Justice Antonin Scalia in the Great Hall of the Supreme Court in Washington, Friday, Feb. 19, 2016, where Scalia's body lies in repose. Scalia’svoluminous public information file is remarkably short on any details related to his health, just a report of minor shoulder surgery in 2003. (AP)

The politicization of U.S. Supreme Court Justice Antonin Scalia’s death occurred almost immediately. Before the nation had any opportunity to come to terms with the surprising event, Senate Majority Leader Mitch McConnell boldly announced that the Senate would not confirm any nominee President Obama would appoint before the November presidential election. Not surprisingly, this statement has proven to be the opening act of a great political circus. The salvos fired by both Republicans and Democrats on this issue have exhibited a dispiriting degree of disingenuous hyper-partisanship.

The Republicans have argued that American voters should have a say in the selection of the next Supreme Court Justice and that the 2016 should in part be a referendum on the Court’s next member. A common Democratic response has been that Americans had their say in 2012, when they reelected President Obama. This petty partisan bickering misses the point. Supreme Court Justices are not political representatives of the American people, but interpreters and expounders of federal law. Their role in the American political system should not require them to reflect the desires and prejudices of the electorate. If the people were intended to have a direct say in the selection of Supreme Court Justices, the Constitution would have provided for their election by the people, rather than for their indirect appointment by the President and confirmation by the Senate. 

Republicans have further claimed that there is an 80-year precedent of the Senate’s failure to confirm a Supreme Court Justice in an election year. This is clearly self-serving rhetoric. This precedent has almost certainly been established by happenstance rather than an 80-year taboo against election year appointments. There is no rule or recognized tradition preventing the confirmation of a Supreme Court Justice this year. This talking point has transparently been manufactured to justify the intransigent partisanship of the Republican position. Certainly, this supposed 80-year precedent would be no obstacle were a Republican president in his last year of office. The Republicans merely want to delay in the hope a Republican will be elected in November, allowing them to preserve the existing balance of power on the Court. 

The Democrats have responded in kind. They have consistently argued that it is the government’s Constitutional duty to quickly appoint a replacement for Justice Scalia. They repeatedly assert President Obama’s right, as the current president, to fill the vacancy. The Democrats are correct that the Senate should consider any nominations President Obama might make this year. However, these assertions are certainly not motivated by an honest desire to keep the Supreme Court fully staffed and fulfill a Constitutional responsibility quickly. Democrats expectantly wish for President Obama to make an appointment that will give the Supreme Court a solid 5-4 liberal majority. It is doubtful that Constitutional responsibilities and presidential powers would be so important were the shoe on the other foot.

The controversy boils down to this. Republicans want the opportunity to appoint a conservative Justice and preserve the balance of power and Democrats want to appoint a liberal and shift it in their favor. Any other arguments, from either side, are self-serving justifications for an unscrupulously partisan political agenda.

The politicization of the Supreme Court is regrettable. Justices of the U.S. Supreme Court should not be divided into partisan camps, but should be neutral interpreters of the law. The Supreme Court may have wandered into this political quagmire through its controversial and polarizing habit of crafting un-enumerated Constitutional rights. Perhaps the cause of its partisan divide is built into its institutional structure, in which its members are chosen and confirmed by the political branches. Regardless, it is unfortunate that an institution that should be above and removed from the petty quarrels of politicians is now the center of them.

It is difficult to listen to the arguments of either side of this controversy. The overblown and insincere arguments being thrown about by both sides can hardly conceal the hard fact that each is doing whatever it can to get a Justice of their choosing. Rather than joining our respective tribe’s dishonest and grotesque display of partisan squabbling, we should bemoan the scarcity of true public servants in Congress. We appear instead to have two blocs of partisan hacks eager to opportunistically exploit a judicial vacancy for political gain. The controversy over this vacancy is the politics of self-righteous and disingenuous posturing. It has no charm for me. 


Brian McCarty is a staff columnist for The Daily Campus opinion section. He can be reached via email at brian.mccarty@uconn.edu.