Democrats were in a full-on panic over the prospects of another Trump appointee to the U.S. Supreme Court, even before they knew who the nominee would be. Republicans who held their noses while voting for Trump because they didn’t want Hillary Clinton appointing federal judges are celebrating their own good sense, even though they despair over Trump’s behavior.
Once there is a nominee there will be Judiciary Committee hearings at which senators from both parties will make long speeches, ask a few loaded questions, and vote on a strictly partisan basis. The Senate will then vote, again as partisans except for the few whose re-election might be at risk if they stick with their party.
Such is the state of federal judicial selection. Politics are everything because judges have come to be viewed as political arbiters — and not without reason. Over the just concluded term of the Supreme Court there were 13 decisions in which the five conservatives (counting Justice Anthony Kennedy) were in the majority and the four liberals were in the minority. There were also 19 unanimous rulings and 25 cases in which the court was divided with a mix of conservatives and liberals in the majority and minority. But the justices’ positions in the cases the public cares about (i.e. union dues, the travel ban, the free speech of bakers) were all too predictable even before the briefs were filed and oral arguments held.
For their part the justices explain their differences in terms of interpretive theory — the liberal wing embracing the idea of a living constitution to be adapted by judges to changing times and values, and the conservatives insisting that the rule of law requires adherence to original language and intent. But neither side is reliably consistent in its interpretive approach, with politics and personal values too often the most plausible explanations for deviations from claimed interpretive theory.
It is not difficult to understand the challenge judges face in maintaining strict objectivity in the…