Nine Justices sit on the United States Supreme Court. Whenever a sitting justice either voluntarily retires or passes away, a vacancy on the court is recognized. The President of the United States nominates someone to fill the vacant seat, with the advice and consent of the US Senate. A nomination to the Court is considered to be official when the Senate receives a signed nomination letter from the President. Once the Senate has held hearings and investigated the qualifications of the nominee, they vote and if a majority is in favor, the person is approved and takes his or her place on the highest court in the land.
In an attempt to keep politics out of the Supreme Court’s decision-making process, it is a lifetime appointment. Once the selection process is over, the justices answer to no one. The Court is literally the final word.
The nomination process does not always go smoothly. There have been 37 unsuccessful nominations to the Supreme Court of the United States. Of these, some were withdrawn, some declined and some died before being able to assume a position on the Court. Eleven nominees were rejected by the Senate in official roll call votes.
The Senate’s role is to look at the qualifications of the nominee and determine if they are fit to serve. Being a political body, of course, means politics has played a part in virtually every rejected nomination. For example, Ebenezer Hoar was nominated in 1870 by Ulysses S. Grant and rejected by the Senate. The primary objection was that while serving as Attorney General, Hoar had opposed using Federal Circuit Court appointments as political party patronage positions. Most citizens thought that was a good thing. Most Senators, however, were not so happy at the limitations on their powers of political patronage, so for doing the right thing, Hoar was rejected from the high court.
Richard Nixon nominated G Harrold Carswell for a Supreme Court vacancy but the nomination was doomed when political opponents provided reporters with a Carswell speech from his days as a candidate in Georgia where he endorsed racial segregation. Mr. Carswell’s track record on the federal appeals court in New Orleans was littered with an unusually large number of cases that were later overturned.
It was Ronald Reagan’s nominee, Robert Bork, who forever changed the way the Senate nomination hearing process worked. Mr. Bork’s educational and judicial qualifications were impeccable. His intellect was unquestionably up to the task. His nomination to the Supreme Court, however, came at a time when the Iran-Contra scandal had rendered Reagan a less powerful figure in Washington. Despite the fact Bork had served with Antonin Scalia on the Circuit Court and had a nearly identical voting record, the US Senate, who had approved Scalia on a 98-0 vote just a little less than a year before, soundly rejected Bork. The hearings were something of a circus.
Emboldened by their success against Mr. Bork, the Democrats in the Senate tried to employ rough and tumble hardball tactics in the 1991 nomination of Clarence Thomas. He was accused of sexual misconduct, viciously attacked for his character and generally treated with disrespect by the Democrats. His inspiring life story and solid track record from the bench were largely ignored. His nomination was eventually approved but the left’s slash and burn approach to any nominee they didn’t like was born.
Rather than focus on the judicial qualifications and track record of conservative nominees, the left unabashedly attacks the character of Republican Presidential nominees to the Supreme Court. In the case of Justice Kavanaugh, his nomination was nearly derailed by activists claiming Mr. Kavanaugh had raped and/or assaulted them or someone they knew. Multiple accusers later acknowledged they had fabricated the claims in a political maneuver. None were ever held accountable despite the gravity of their attempts.
During her Senate hearings, there were attempts to paint Amy Coney Barrett as a religious nut and as a racist. An effort was made to use her activity in her own church against her and in a particularly odd twist, opponents tried to claim that the fact she had adopted two minority children was actually proof of her racist tendencies. The claims fell flat and her nomination was approved.
As the left screams at a Supreme Court that tilts toward the right for the first time in at least two generations, much is made of how the nomination process has disintegrated into a shameless circus of lies and half-truths. What could be worse than ignoring the judicial qualifications of a nominee? What could be worse than fabricating character flaws in an attempt to thwart perfectly good people from serving on the court?
In reality, there is one such situation that is worse.
What if a conservative President of the United States nominated an individual to serve that had an impressive, consistent track record in the lower courts. What if his education was top-notch and his family life looked as though it was straight out of 1950s US television? A wholesome, clean-cut nominee with no apparent warts. Let’s up the ante and say this individual was nominated not just for any seat, but for Chief Justice.
What if the Democrats found something terribly embarrassing in the nominee’s past, however. Something shameful. Something that could not only rock his nomination to the high court but destroy his family and forever change his reputation? The kind of thing that makes the nominee’s children never see him the same way again? What if the Democrats chose not to use the information to knock the nomination off track and instead allowed his nomination to be approved?
Was it an act of goodwill? Hardly.
On a Supreme Court where key decisions are sometimes made on 5-4 votes, what if Democrats now had a puppet at their disposal? As long as their puppet was well behaved, the wholesome nominee, now Chief Justice, could vote his conscience. In these votes, the Chief Justice built a track record completely consistent with his votes from his lower court days. In matters that could change the course of history, however, those Democrats with the shameful information on the Chief Justice could pull the strings and remind him, if he wants to continue his idyllic life and keep his secret, he would need to vote differently than he might be expected to.
Gay marriage might be one example. In this scenario, evil left forces anxious for this huge societal change might twist the blackmail arm of the Justice, tipping the scales in their favor in a 5-4 vote. The same could be said for getting a Justice to flip on Obamacare matters or to ignore his own abortion voting track record and suddenly side with the left on the issue.
What if those with the nasty information on the Chief Justice knew enough to use it judiciously, no pun intended. They only tugged on his strings when the stakes were particularly important to them. Otherwise, they left him to his own devices, in the meantime, building a marginally conservative overall vote tally.
The idea of SCOTUS nominees being rejected for political reasons is disappointing. Nominees being crucified in a public circus in Senate hearings for completely fabricated violations is even worse. It’s scary and sets a dangerous direction for US governance. When I say scary I mean it. Liars being treated with more respect by opposing Senators than a nominee with decades of public service is unacceptable.
There is a far worse scenario, however. A Chief Justice under control of a behind-the-scenes nefarious group? That is dark stuff. The Supreme Court undermined, not in public, not by accusations, not by some real or perceived human flaw, but by old-fashioned blackmail.
The possibility of a nominee having a major flaw, a deviant secret and that secret not being exposed during nomination hearings but instead used as a tool to control a Chief Justice? THAT is the scariest of all possibilities. That is the worst-case scenario.
- Tim Constantine is a columnist with the Washington Times.