Staff Columnist

For SCOTUS, two wrongs won't make it right

A flag is seen outside the U.S. Supreme Court in Washington, U.S., June 25, 2018. (Toya Sarno Jordan/Reuters)
A flag is seen outside the U.S. Supreme Court in Washington, U.S., June 25, 2018. (Toya Sarno Jordan/Reuters)

Republicans were wrong to hold a U.S. Supreme Court nominee until after the 2016 elections. Democrats are wrong to demand a replacement for retiring Justice Anthony Kennedy not be confirmed until after the midterms.

When Justice Antonin Scalia unexpectedly died in February 2016, U.S. Sen. Chuck Grassley, R-Iowa, bowed to pressure from Senate Majority Leader Mitch McConnell, R-Ky., to inject pure partisan politics into the U.S. Supreme Court.

Instead of giving President Barack Obama’s nominee, Merrick Garland, a fair hearing, Grassley bucked procedural norms in an unprecedented act of judicial obstruction. Garland was given no hearing by the Senate Judiciary Committee. Senate Republicans, led by Grassley, claimed new political ground at the expense of an independent judiciary by insisting the next Supreme Court nominee not be considered until after the president chosen in the 2016 election had been sworn into office — 342 days after Scalia’s death.

And, even then, when the 2016 general election provided Republican majorities in both congressional chambers and control of the White House, the rules were changed again. McConnell employed the so-called “nuclear option,” ensuring that President Donald Trump’s first nominee, as well as any to come, would not face the high bar of Senate scrutiny afforded to previous candidates. Debate on the lifetime appointment of a person to the nation’s highest court could be closed with a simple majority vote, instead of the previous three-fifths supermajority of 60 votes.

Democrats also employed the “nuclear option” in November 2013 to advance executive branch nominations and some federal judicial appointments, but McConnell’s decision in April 2017 to use it in regard to the Supreme Court was unprecedented. It came after Trump’s nominee, Neil Gorsuch, failed to meet the 60-vote threshold, making him the only member of the court unable and not required to scale the higher bar.

Now that Justice Kennedy has announced his retirement, Democrats say Republicans should follow the new process they created, that the Senate Judiciary Committee should not consider any nominee until after the November midterms. It’s an extremely dangerous game of political expediency that Americans should oppose, because it would further undermine the legitimacy of the court.

Throughout history the court has made decisions that frustrated or angered certain populations. Religious groups, for instance, have long opposed Roe v. Wade, which said the 14th Amendment’s right to medical privacy affirms a woman’s right to abortion, and, more recently, Obergefell v. Hodges, which provided a fundamental right to marry to same-sex couples. Progressive groups have rallied against decisions like Citizens United v. the Federal Election Commission, which said political spending is protected speech under the First Amendment.

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From affirmative action to desegregation, debate has been passionate and fierce. Opposing groups have organized around their opinion, promoted like-minded candidates for public office, rallied against judicial appointees with differing views and petitioned the government to change laws in an attempt to nullify court decisions. The decisions they’ve battled have been publicly derided as “bad” or “flawed,” and lower-court justices have been ousted for their support of higher court rulings. Pundits have lamented the ideological persuasion of various high court justices.

But, until the most recent maneuvers by Grassley and McConnell, those in disagreement have largely stopped short of questioning the political independence of the Supreme Court and its legitimacy to make decisions.

Lost on no one were the similarities of two recent cases, or their opposing outcomes.

A decision in early June favored a Colorado baker who refused to create a cake for a same-sex wedding celebration and was largely decided on the “biased” words and actions of the state civil rights commission, which the justices said “disparaged” the baker’s faith and “cast doubt on the fairness and impartiality” of the commission member’s decision.

Yet, when deciding the legality of the Trump administration’s travel ban, justices deemed President Trump’s inflammatory rhetoric in relation to Muslims was of no consequence.

So, the baker prevailed, according to the court, because a minority of commission members showed “elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection” to creating the cake. But the travel ban was upheld, as Justice Sonia Sotomayor notes in her dissent, despite numerous statements by candidate and President Trump explicitly advocating a “Muslim ban” and calling for a “total and complete shutdown of Muslims entering the United States.”

While such a discrepancy would have previously been blamed on ideological differences between the justices, the semantics have changed. Thanks to the unprecedented partisan stain placed upon it by McConnell and Grassley, the nation’s highest court — often the final word on laws that impact generations of Americans — is being downgraded from its historic role as an independent arbitrator to a politically motivated organization.

For the nation, this is a toxic shift that will remain until Gorsuch ages off the court. We should all pray the tarnish remains contained.

Democratic demands regarding Kennedy’s replacement are political expediency — short-term political payoff at the expense of long-term national misery.

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Grassley’s legacy is confirmed. Despite years of public service, he will be remembered as the leader of the Senate Judiciary Committee who chose party over his duty to the country. The court and the nation’s legacy, however, has not yet been permanently tarnished.

No matter how politically satisfying it may be to further downgrade the judiciary with partisan ploys, or how horrific the ramifications, a legitimate process must be restored.

• Comments: @LyndaIowa; (319) 368-8513, lynda.waddington@thegazette.com

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