Why does America even have 'liberal' or 'conservative' judges - aren’t they supposed to be neutral?
Historian of Supreme Court says politicisation worsened under Richard Nixon
(Anton Scalia, who died in 2016, was an unabashed conservative. Credit: Wikicommons)
A few years ago I ran into Dianne Feinstein.
Ran after, would be more accurate.
It was September 2018 and she was the senior Democrat on the Senate Judiciary Committee. That committee was holding hearings over the confirmation of Brett Kavanaugh, who was Donald Trump’s choice to fill an empty place on the Supreme Court.
In the past, such events had tended to be drama free - the hearing for Clarance Thomas an exception to the rule - but Kavanaugh had been accused of sexual assault when he was was at high school.
And after Republicans blocked Barack Obama’s attempt to fill a spot back in 2016, Democrats were not in a forgiving mood.
My question for Feinstein, quick on her heels and sharp in her words as she hurried towards an elevator, was simple - was she going to vote “yes”?
The hearings, she said, had been a “national moment”.
“It was an important nominee to the Supreme Court and one that could tip the balance on key issues, and that is a women’s right to control her own reproductive system, as well as gun issues…as well as presidential authorities,” she added. “I think his qualifications are there. I don’t agree with may of his views, particularly what I just said I and can’t vote for him, and I will be a no vote.”
I have been thinking a lot about that brief conversation, before the committee met to vote on party lines 11-10 and send Kavanaugh’s nomination to the full Senate, where he’d be confirmed 50-48.
During the hearings, Feinstein, an icon for many on the Democratic left, appeared sharp and present. It was she who angered Republicans by insisting they delay the process after she received a letter from the accuser. The committee, and the country, she thought, ought to hear from Kavanaugh, who rejected the allegations, and from his accuser.
Now, Feinstein, aged 89, is at the centre of new drama, and this time it is about her.
A series of reports have suggested she is losing her short term memory. There has been pressure on her to retire but she wants to see out her sixth term and leave with grace in 2024. It is painful for her, her supporters, and her family. She is currently away from Washington, recovering from shingles. (Update: On Tuesday Politico reported she was heading back to Washington DC.)
It has also become a problem for Democrats because, with the House now controlled by Republicans, one of the few things they can do is push forward the confirmation of judges. During his single term, Trump appointed 234, all of them conservative.
Biden has to date appointed 126, and he wants to rack that number up. The majority of them have been liberal, perhaps most obviously Ketanji Brown Jackson, sworn in as the first Black female justice in June 2022, taking a vacancy created by the retirement of Stephen Breyer
(Diane Feinstein, pictured in 2014, has become an icon for many Democrats. Credit: Wikicommons)
But to do so, he needs the judiciary committee - of which Feinstein remains a member, though not its chair - working smoothly. Because she is sick, Democrats asked Republicans to agree to her replacement, as they need to do.
Republicans, because this is a way they can try and mess up Biden’s plans, have refused. Some Republicans, such as Mitch McConnell, have claimed they have Feinstein’s best interests at heart, referring to her as “dear friend”.
The likes of Lindsay Graham have been more blunt about this being simply about politics. “This is about a handful of judges that you can’t get the votes for,” he said.
But this is not a story about Diane Feinstein and her struggle with the all too human problem of finding a way to bow out gracefully.
Rather, it is about what her plight tells us about something strange about the nation’s legal system.
In what other country are judges pigeonholed either “liberal” or “conservative” and all the while pretending they are neutral arbiters of the law? To someone not used to this kind of system, it requires a certain amount of intellectual gymnastics to go along with it.
A headline in an 2021 article in The Atlantic summed it up well - “The Lie About the Supreme Court Everyone Pretends to Believe”.
And it raises the question of how did we reach this strange place. Ought not judges be picked because they are qualified for the job, and then asked to look at the law?
There is no one way to select judges. At a county level, they often run for election and identify themselves as attached to one or other party. Some elections are “nonpartisan”.
At a state level, judges are selected either by elections, or else by commission established by a governor’s office to help she or he make an appointment.
The so-called Administrative Office of the US Courts on behalf of the Federal Judiciary, says: “Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution.”
Prof Renee Jefferson, an author and legal historian, who has studied the US courts. She is the author of several books, among them Shortlisted: Women in the Shadows of the Supreme Court, that tells the stories of nine female judges, considered for the highest court but who were never appointed.
She notes that in the US, unlike many other democracies including the UK, Australia and India, some judges do carry with them a very clear political tag. This is particularly the case for the Supreme Court, where while the justices may themselves deny any political bias - “This Court is not comprised of a bunch of partisan hacks,” Barrett claimed in 2021 - it seems clear to everyone else.
(Ruth Bader Ginsburg was idealised by many on the left. Credit: Wikicommons)
She says the access to the top court was always a political issue. Yet she argues the intense politicisation we’ve seen in the last few decades - does anyone doubt where the biases of Anton Scalia lay, or those of Ruth Bader Ginsburg - dates to Richard Nixon. In particular, it was Nixon who started making public the list of judges up for appointment. (FDR was the first to include a women on his list, but it was not made public until later.)
“I've listened to the Oval Office tapes, and President Nixon behind closed doors would say things like, ‘I don't think women should be allowed to vote. But he wanted their votes’,” Jefferson tells me. “But he was coming up for re election, he was mindful of the women's movement and the United States in particular in the early 1970s. So he puts two women's names on a shortlist, fully not intending to put them on the court.”
She says that was a moment in time when “politicians began to realise their promises, and pledges and placement of people on the shortlist could be a lever to move votes”.
Jimmy Carter make more accessible and diverse the process for selecting federal judges and appointed a number of women. He planned to appoint the nation’s first female supreme court justice if reelected.
As it was, he lost to Ronald Reagan, who saw the advantages of copying Carter’s idea. To his credit, Reagan kept to his word and appointed Sandra Day O’Connor. But he went no further: two other vacancies that emerged were filled by men
“And then we can fast forward to Trump, with the most obvious and blatant politicisation of the court,” she says. “He campaigned on a list of names when he was in office, you could go to [a White House website] and see his ever growing list of names for the court.”
She says at each moment, presidents saw how pledges and the placement of names on the Supreme Court shortlist, could get them political votes regardless of what they actually did.
“I think that’s only made the politicisation we've seen in other ways, more embedded and problematic.”
There have been various suggestions on how to make the court less intensely political - more justices, fixed terms.
Jefferson says the most effective steps have been those that secured structural reform. She says Carter put more women and minorities on the court, by establishing commissions tasked with creating more a more diverse pool.
Among those identified was Amalya Kearse, an African American judge who in 1979 would be appointed to the Court of Appeals for the Second Circuit, the first woman and only the second African American confirmed.
Kearse, now 84, also appeared on Reagan’s list of potential Supreme Court picks. She was also considered for the court by George HW Bush and Bill Clinton.
“Presidents from different parties were finding her qualified,” says Jefferson,. “That tells me Carter's structural reform, or something like that, for our judicial selection process, would be more likely to lead to judges and justices, that no matter your political ideology, you would find them to be fair and impartial. And that is what we want.”
Recommended reading:
Two Substacks I found interesting to look at included
Razib Khan's Unsupervised Learning
and
Notes from the Emerald City, by Amy Sundberg
Thank you Andrew. Yes, judges are supposed to agnostically rule outside their political positions, but that democratic ideal totally disappeared when President Trump asked the Federalist Society to handpick right-wing judges with obvious biases. Clarence Thomas is another example of an activist-judge who doesn't belong on the bench.