In truth, probably not much.
But there is a perception issue, to which I will return in a moment.
First, though, the
New York Times has this interesting story and infographic, by Gregor Aisch, Josh Keller, K.K. Rebecca Lai and Karen Yourish, "
Supreme Court Nominees Considered in Election Years Are Usually Confirmed." An excerpt from the inforgraphic follows:
The
Times article cites as one its sources a post on Scotusblog by Amy Howe, "
Supreme Court vacancies in presidential election years." As you've heard a million times in the past couple of days, Justice Anthony Kennedy was confirmed during 1988, when Ronald Reagan, like Barack Obama, was in his last year in office. What has
not been mentioned, and certainly not mentioned as loudly, is that Kennedy was confirmed to fill the seat vacated by the retirement of Justice Lewis Powell -- in late June 1997. Thus, while Kennedy was confirmed in an election year, he did not fill a vacancy occurring during an election year. (Kennedy was Reagan's third nominee for the Powell vacancy -- after Robert Bork was rejected by the Senate and after Douglas Ginsburg withdrew his name from nomination following the revelation that he had, at least on occasion, smoked marijuana while a professor at Harvard Law School.)
Two hundred twenty two days elapsed between Powell's June 26, 1987 retirement and Kennedy's confirmation on February 3, 1988. There will have been 342 days between the date of Justice Scalia's passing, February 13, and Inauguration Day, January 20, 2017. I can only hope that the President and the Senate will be able to agree on a suitable successor in the meantime.
This afternoon, of course, compromise seems impossible -- with many prominent Republicans vowing they will never permit a vote to confirm
any Obama nominee.
And therein lies the perception issue that I mentioned at the outset of this post: Republicans and Democrats alike seem to be proceeding from a belief that any nominee will be an empty vessel into which may be poured, without fear of alteration or dilution, the opinions and prejudices of the President who nominates him or her.
How insulting.
And also demonstrably untrue.
William Brennan and Earl Warren were Eisenhower appointees. John Paul Stevens was appointed by Gerald Ford.
But if our politicians and pundits insist that a justice of the United States Supreme Court is just a partisan with a robe, what contempt they must have for any local trial court bench! Surely if SCOTUS is analogous to the major leagues, the Cook County Circuit Court is at an A league level at best.
This sort of outrageous, and corrosive, opinion must be challenged. A judge who would put political considerations above the facts and the law applicable to the case before him or her is not worthy to be a judge in our courts. In any of our courts. This is not Venezuela or some Third World country where the judiciary is a mere adjunct of the will of the Leader.
This is not to say that judges, being human, don't bring the totality of their experience with them to the bench, including their political opinions and observations. In my youth I represented insurance companies almost exclusively and often in 'first party' cases -- cases brought directly against an insurer. I regularly appeared before one judge who I knew to be quite hostile toward insurance companies. He'd probably fought too many battles against insurers while in private practice trying to put food on the family table. So, naturally, I took a change of venue from him in every case, right?
Wrong. I knew the judge to be biased against insurers, but I also knew that this was a judge who followed the law, even when the facts and law took him where he did not want to go. I argued any number of dispositive motions before this judge. I could always tell when I was going to win: He'd come out on the bench red in the face, maybe even angry, because there was no way around my position. If I was going to lose, he'd be smiling, generous, considerate. He'd tell me what a good job I'd done on my motion. But, most important, when I lost, he had a
reason -- something I could point out to my client (something I'd hopefully already pointed out to my client as a potential problem area). His personal attitudes did not color his decisions, although they may have colored his attitude
toward his decisions.
I truly believe that, although one may be happier about the outcome than the other, a rock-ribbed conservative judge and a wild-eyed liberal judge deciding the same motion on the same facts should generally arrive at the same result.
I know, and occasionally chat with, some Cook County judges who enjoy politics -- it is our only year-round professional sport -- and they know all the players, all the nuances, all the subtleties. That does
not make them partisans in robes. I'm quite certain that the few dozen persons who have any reasonable hope of getting a call from this White House, or the next one, whoever the Occupant may be, know an awful lot about the politics at their rarefied level. That does not make them partisans who would wear robes either. It is not following politics
per se, or even holding arguably partisan political opinions, that disqualifies a person from judicial office; however, anyone who would deliberately reach a knowingly unjustified result in the hopes of currying favor with a politician or faction should never be a judge.
I wish the chattering class would stop suggesting that persons realistically aspiring to the highest court in the land would purposefully wait for the wink and nod of their party leader before casting a vote. It unfairly besmirches those men and women -- and all men and women who serve as judges at any level.
