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Sunday, Nov 8, 2009
So what's to be done about it?
Obvious Solution No. 1: Don't Retire
If the actions of the Supreme Court in Bush vs. Gore lifted the veil on the politicization of the federal judiciary, a decision by any of the "Bush 5" to retire for anything less than a genuine emergency would threaten to rip it off. Only the truly deluded could sincerely believe that the court would have decided the same issues of law in the same way had the parties in that case been reversed. That is a pretty damning observation, but it need not be left unanswered in the legacy of this decision. Were there to be no vacancy in this presidential term, the mutual back-scratching aspects of this allegation would be left unfulfilled, and the debate over the potential opportunity for the court's conservative majority to perpetuate itself outside the popular sovereignty of the nation would be academic.
But in the event of a vacancy, that allegation of corruption comes full circle. So stick it out - the next election is only 18 months away, and (knock wood) as long as its results are anything less razor-close than the last one, the next vacancy on the court can be filled without all these complications. The justice who decides to retire anyway will fuel the worst allegations leveled at Bush vs. Gore: that it is a decision, alone among Supreme Court precedent, that was decided not just by the general ideology of the individual justices but also by their political self-interest in determining the selection of their own replacements.
Should a justice retire without demonstrating a truly compelling set of personal or health-related circumstances, the political war to follow will be made that much worse. To borrow a recent turn of phrase, it will be a war of choice, and not of necessity -- one in which the political attack dogs of both sides will be turned loose if and only if a particular justice decides to let them slip. To whatever extent the justices have gotten a pass for the way they voted in Bush vs. Gore, there can be no mistaking the responsibility for the political wounds that would be opened by a Supreme Court nomination. A decision to retire at this point would start the chain of causation leading to profound acrimony and political damage; a decision to stick it out would leave this Pandora's box unopened.
Obvious Solution No. 2: Don't Fill the Vacancy
Again, the election is only 18 months away -- that's really just one Supreme Court term, assuming that any retiring justice stays on the court until the end of the spring calendar. Should a justice retire this summer despite the controversy into which that decision would throw the government, President Bush could just let the court operate for a single term with only eight members. The outcome of this would neither be unprecedented nor particularly debilitating to the effective administration of justice.
"Better the bench shall be vacant for a year than filled for half a century by ... partisans committed in advance to particular beliefs." An editorialist for the National Intelligencer wrote that in 1845, after President John Tyler had spent over a year trying (and failing -- five times) to get the U.S. Senate to confirm one of his nominees to the court. At the state level, as recently as 1966, the South Carolina Supreme Court operated with a vacancy for an entire year. Even in the ordinary course of events, judges (and justices) commonly recuse themselves from particular cases on which they could have an actual or perceived conflict of interest. Courts have experience operating with vacancies and this extraordinary time should call for an extraordinary measure.
Moreover, this make-do-with-eight approach would not necessarily have such an extraordinary impact. With one vacancy on the nine-member court, the only cases whose outcomes would be directly affected would be those that would otherwise be decided 5-4. The vast majority of cases that would otherwise be decided by a larger margin would instead turn out to seem superficially closer (i.e., decided 5-3 instead of 6-3, and so on), but the outcome of those cases for those litigants would be identical. In the 4-4 cases that would remain, the lower court's decision would stand and the Supreme Court's resolution would create no precedent, an entirely predictable result that occurs from time to time even now during ordinary recusals. Furthermore, these narrowly decided cases are both a very small minority of the court's caseload, and, by self-definition, the cases on which the judicial branch of the national government is most closely divided. These are the cases with respect to which the accountability of the justices, ensured by the process through which they are installed on the court, is most important.
The hypothetical retirement of both Chief Justice Rehnquist and Justice O'Connor essentially just doubles the stakes - making two nominations under these circumstances does much more damage to the authority of the court as an institution than making just one. The existence of two vacancies would change the outcomes of the most closely decided cases, giving effective control of the court back to the moderates. If that outcome seems less fair than the freezing of the status quo that would result from only one vacancy, the fault for that (or the credit, depending on your perspective) nevertheless should lie with the justices who choose to retire.
It is not an answer to suggest that Bush could both accommodate these concerns about accountability and act to maintain the status quo by making only one appointment. The basic problem with any appointment to the Supreme Court in this term is that it completes the circularity of the conspiracy allegation against the Bush 5. Making only one appointment might do less damage than making two appointments, but the point is that the president and the justices should be principally concerned with reinforcing the court's legitimacy, not with pursuing horse trades aimed at taking what they can get.
Taking the path of leaving any vacancy open would not only spare the country from what promises to be an historically acrimonious confirmation process -- it would unite instead of divide. The importance of protecting the integrity and the moral authority of both the new justice and the entire Supreme Court is something on which everyone should be able to agree. Based on the vote counts in the 2000 election, the need for more conservative Supreme Court justices is something with which a net of half a million voters would evidently not agree. The best option for a president who truly means to unite and not divide is unmistakable.
