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What The Politicization Of The Supreme Court Means For the Institution

Sep 27, 2018
Originally published on September 27, 2018 6:34 pm
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MARY LOUISE KELLY, HOST:

Well, there was irony on display today - politics and partisan bickering, as Nina just referenced, at a hearing called to consider a nominee for the Supreme Court, an institution that was never meant to be political. A recent piece in The New York Times argued the court has become another polarized institution in the polarized capital of a polarized nation.

We're joined now by Josh Blackman. He's a law professor at South Texas College of Law in Houston. Professor Blackman, welcome.

JOSH BLACKMAN: Thank you for having me.

KELLY: We are glad to have you with us. Has the court become a polarized institution in the polarized capital of our polarized nation?

BLACKMAN: The biggest loser in this is the Supreme Court. No matter what happens - if Kavanaugh is confirmed, if his nomination is withdrawn, if someone else is put up, the Supreme Court turns out looking very bad. Judge Kavanaugh made a lot of statements that were quite partisan in his opening statement, and perhaps they were justified. But his role is not as a advocate. His role is a judge and almost a justice, so this is bad.

KELLY: We've heard Supreme Court nominees come out in confirmation hearings and sound angry before - Clarence Thomas comes immediately to mind - but not quite as partisan as we just heard from Brett Kavanaugh.

BLACKMAN: These were statements that were directed not at the process but at the Democrats.

KELLY: Right.

BLACKMAN: He named Democrats by name over and over again. And I think Judge Kavanaugh had a lot of raw emotion that really overcame him.

KELLY: Was the nomination process ever not politicized, though? I mean, by definition, it's the president who does the nominating, and it's no surprise that a president tends to pick people whose rulings they think will align with their party's political agenda.

BLACKMAN: Well, you have some nominations - for example, Antonin Scalia confirmed 98-0, Ruth Bader Ginsburg confirmed 96-3. Then you have Clarence Thomas and Robert Bork, quite contentious hearings. So it goes on and off. But since I think the Roberts nomination in 2005, it's been going downhill very quickly. And we've reached a new low here with Judge Kavanaugh.

KELLY: It's worth noting since you mentioned the margins of votes in the Senate, Kavanaugh of course has been nominated to replace Justice Anthony Kennedy, who, if I'm not mistaken, was the last member of the court to be seated with a unanimous Senate vote. Do you think we'll ever see that again?

BLACKMAN: No, and I don't think we'll see anything but party line votes going forward. In fact, if the Democrats take the Senate in 2018 and President Trump can't get someone nominated in the lame duck, that seat will probably stay open for a couple years until the 2020 election.

KELLY: So what are the consequences of this for the branch of government that, as we said, is supposed to be above the politics of the capital in which it sits?

BLACKMAN: This is really troubling for me. The court as an institution will look very bad after this. Even if Judge Kavanaugh makes it through, this cloud will remain. I think Judge Kavanaugh said, my reputation was ruined. It has been. And I don't know what he can do to get it back.

KELLY: And...

BLACKMAN: No FBI investigation will help.

KELLY: And what if he doesn't make it through? I mean, if there ends up being a different nominee, could this move forward? A pure hypothetical - we don't know what will happen. But could it move forward in a different way?

BLACKMAN: If you do the timing just right - and I've done the math - you can get someone confirmed before the election. But it's going to be real quick, and they'd have to blow through it. Nina's shaking her head no.

KELLY: (Laughter).

BLACKMAN: But more likely than not, it will go to the lame duck session. Now she's shaking - now she's smiling.

KELLY: We shall see how this all unfolds both tomorrow when the Senate is saying they're going to vote on Kavanaugh and with the midterms to come. Josh Blackman, law professor at South Texas College of Law in Houston, thanks so much.

BLACKMAN: Thank you. Transcript provided by NPR, Copyright NPR.