During the first transition of power from one party to another in the nation’s history, a president and a lame duck Congress engaged in a rapid reorganization of the federal judiciary.
The quick passage of a law and the swift installation of judges allowed the Federalist Party to maintain influence in governing the country during the early days of the republic, despite its electoral defeat. Because of other, more routine, appointments, the Federalists maintained a measure of sway in the nation’s courts until the death of Chief Justice John Marshal in 1835. The Federalists had ceased to be a functioning political party nearly two decades earlier.
Given that situation, and others like Roosevelt’s attempt to “pack” the courts in the 1930s, it should come as no surprise that contemporary politicians have engaged in gamesmanship to try to maintain the upper hand in the federal court system through the appointment of judges. One only needs to look back to 2016, when the Senate refused to even hold hearings for Merrick Garland, who had been nominated to the Supreme Court by then-President Barack Obama. That cynical and unprecedented power play provided a highly public example of the chicanery that has taken place regarding judicial appointees.
In 2013, Democrats eliminated the filibuster during judicial confirmations. It was the only option they felt was available to them to overcome the obstruction of Senate Republicans to appointees whose only sin was having been nominated by a Democratic president. The tricks and ploys to create delays and block as many nominees as possible had finally caused the Senate to alter one of its fundamental procedural rules.
Within the past week, another example of hypocrisy in the struggle to control the judicial branch was provided by Sen. Joni Ernst of Iowa. Upon the news of Ruth Bader Ginsburg’s admission to the hospital, Ernst signaled her preference that, should Ginsburg’s health issues result in a vacancy on the Supreme Court, the Senate should hold hearings regarding a replacement.
I agree with Sen. Ernst. Those hearings should be held if the “Notorious RBG” is unable to continue to serve. A replacement should be put on the court. But where was this logic four years ago? The answer is obvious: It was obscured by partisan considerations because a Democrat was in the White House. While Sen. Ernst is not the only official to engage in this blatant duplicity, she has provided the most recent example.
This has caused Democrats to propose further changes and reforms to prevent future machinations from negatively impacting federal courts. One contender for the Democratic nomination even put forward the idea of asking Congress to create two new positions on the Supreme Court (nine justices is not a constitutional requirement). While I don’t agree with that approach, I can understand the frustration Democrats have in dealing with people like Joni Ernst and Mitch McConnell, who are only interested in following in the Federalists’ footsteps in gaining domination of the courts through procedural and political manipulation.
But what about the damage already done to the courts by this caustic approach to providing advice and consent? The rush to politicize them has led to imminently unqualified individuals being granted a life term on the bench. It is producing jurisprudence out of step with the Constitution. It is politicizing the branch of government designed to be insulated as possible from popular opinion.
Those things cannot continue. And it is obvious we cannot rely on the likes of Joni Ernst and Mitch McConnell to put an end to it.