Americans have grown accustomed to having their political differences settled through the courts rather than by their elected representatives in legislatures.
The business of government was supposed to be done by political bodies such as state legislatures and Congress. Today, few political problems are debated, or legislation passed. It is easier for legislators to do noting but rile up the extremes on both sides of an issue in the media, than do the hard work of finding solutions. Each year, there is a growing reliance on filing legal cases rather than passing legislation.
Republicans and Democrats considering the above have made the confirmation of judges political instead of what was intended by the Framers.
The “advise and consent” role was not meant to oppose the executive’s choices because of a nominee’s judicial philosophy or because the president is of a different political party. Senators were to be a check on whether the nominee was qualified. Whether the president’s choice in a judicial nominee be conservative, liberal, originalist or pragmatist, it should not be considered when a senator decides on a candidate’s qualifications.
At the same time, a nominee has an obligation to answer questions about what they have written. This includes explaining their past legal decisions and other judicial articles or books. How is a determination going to be made as to qualifications if a nominee hides behind a cloak of impartiality? They can be forthcoming without risking being prejudicial.
More than 30 years after the Bork hearings initiated the raw exercise of political power in the nominating process, we have seen how far the Senate has strayed from the original intent of the Framers. The Senate was never supposed to be a chamber of popularly elected pols but rather representatives appointed by their individual state legislatures.
The confirmation process entrusted to them under the Constitution was meant to ensure that the individual states had a check on who was being confirmed not only to the courts but also regarding treaties and executive appointments. When the Constitution was amended to call for the direct election of senators the “advise and consent” provision was never changed.
What Majority Leader McConnell did by holding up the Garland nominee in 2016 from a hearing and possible confirmation was an abuse of power that was unconscionable. The Framers would have been appalled by such an action.
Although rushed, the recent appointment and confirmation of Coney-Barrett was in no way unconstitutional. I find having a celebration of her confirmation at the White House to be unseemly, though. Once confirmed, any judge, especially a Supreme Court Justice, has no business being seen as partisan. That was a partisan event.
So far, while the process has become more and more political, the caliber of the nominees has been stellar. President Trump’s confirmed justices, Gorsuch, Kavanaugh, and Coney-Barrett, are all qualified. Yet, it is only a matter of time before politics intrudes here and someone unqualified is confirmed.
Political parties have so corrupted our civic institutions that our democracy is in peril. Partisanship has eaten into our governmental fabric making the act of governing more and more dysfunctional. There needs to be reform of the process by which we choose our national elected officials. Reforms such as term limits and the drawing of electoral districts by non-partisan commissions need to be implemented along with a number of others.
We cannot continue down this path. There needs to be concrete statutes governing the behavior of elected officials. Their main goal is the preservation of their own power. What else explains the gerontocracy that inhabits the nation’s capital.
COVID has proven the weaknesses of our institutions. It has also shown how bitterly divided we are politically. We no longer can agree on simple facts. How do you solve a problem like COVID if 40% of the population believes there is no problem?
HOW WE CAN LOSE OUR DEMOCRACY
At some point soon, Americans may come to ignore court decisions that they disagree with. Then what happens? If the executive refuses to enforce a court decision, what are the ramifications?
As Andrew Jackson once famously said about a Supreme Court decision he disagreed with; “John Marshall has made his decision; now let him enforce it.”
While that decision having to do with tribal sovereignty and rights would still be precedent setting, Jackson’s refusal to abide by it shows how easy it is for a powerful person to erode the underpinnings of our democracy. The U.S. only works if we all follow the Framers’ foundation. Our democracy only survives when we follow the laws and not sway to the siren song of a despot.