In another era, the sudden death of a Supreme Court justice would not have provoked the kind of hyperpartisanship that has followed Saturday’s death of Antonin Scalia.
The court was seen as above politics, even though the written opinions reflected interpretations of the law and the Constitution that came from different understandings of the roles of government, private business and political institutions in shaping society.
Ironically, it was Scalia who politicized the court with his public speeches and appearances that linked the court and its decisions to policies and programs identified with different political factions. The effect has been for members of political parties to attempt to enlist the court in their causes by stacking it with ideological allies.
So it is not surprising that a vacancy on a divided court coming in the midst of a presidential campaign would immediately become a political issue. The appointment has the potential to shift the power to shape policy, which, after all, is what politics is all about.
And given the hyperventilating rhetoric to date on the campaign trail, there’s a plausible argument to be made that a time-out on a new appointment until after the election might result in more constructive hearings than the political posturing that is bound to occur this summer.
But we come down on balance for another position: that no matter how poisoned the political atmosphere, the checks and balances in the Constitution call for a timely presidential nomination and a fair hearing and up-or-down vote in the Senate. A lifetime appointment means a new justice will not just serve during the tenure of this president or even the next one but potentially those in office several decades from now. A new president next year would have no more legitimate claim to shaping the makeup of the court 20 years from now than the current one.
It’s also likely that the same hyperpartisanship at work in the presidential election will shape the type of nominee that President Obama will send to the Senate. Only a jurist of moderate legal views is likely to have a chance at piercing the initial obstructionism displayed by Republicans, who might then recalculate their chances of getting the same type of nominee under a President Hillary Clinton.
As a newspaper, our position has long been to let such political standoffs play themselves out, with as much transparency as possible. Journalists can also hold the parties accountable not just to a common set of facts but to civil discourse – the adage is that bad speech should be countered by good speech, not shunted aside in this case to the next presidency, when the partisanship is likely to be just as strident.
Coming as it does during an election year, the nomination process will also be a teachable moment for politicians and voters alike. The workings of the Supreme Court have always been opaque by design – justices should have the freedom to disagree and compromise in the interest of as fair and complete a ruling as possible. But confirmation hearings increasingly have revealed not only the personal backgrounds of the nominees but also the ideological roots of their legal reasoning.
It is a fascinating lesson in not only how jurisprudence is defined and carried out but also a chance for voters to see how politicians weigh the qualifications of top legal minds against their own political priorities. It will be one more piece of information for voters to process about a presidential or Senate candidate before they vote, and we say let the games begin.