The framers of our constitution would be turning over in their graves if they could see what happened to their words "with the advice and consent of the senate."
Now senators neither advise nor consent to Supreme Court nominations. They politicize, delay, demonize, obscure, fabricate and discredit what should be a non-partisan process of assuring that the most qualified lawyers serve on our highest court. Instead we have come to expect votes that are cast largely along party lines.
It was not always what it has now become. Even in the recent past, highly qualified but controversial nominees -- such as Antonin Scalia and Ruth Bader Ginsberg -- were confirmed with hardly any dissents. No more.
Supreme Court nominee Brett Kavanaugh. Some Democrats showed their disdain for the process by opposing President Trump's pick even before it was made. (Photo by Alex Edelman/Getty Images)
There is enough blame to go around. Republicans point to the Bork rejection (which resulted in the Kennedy nomination) and the Clarence Thomas "high-tech lynching." Democrats point to the Republican refusal even to consider former President Barack Obama's nomination of the highly qualified and centrist Merrick Garland. They also point to the fact that President Trump has "outsourced the selection process to the Federalist Society."
Whoever is to blame, the real victims are the American people who have been denied the constitutional protection of a legitimate confirmation process.
Focusing on the current confirmation battle over Brett Kavanaugh, some Democrats showed their disdain for the process by carrying signs opposing President Trump's nominee even before the nomination was made. They left the name blank and filled it in only after the President nominated Judge Kavanaugh.Others have taken the view that they would never confirm any nominee whose name was on the list provided by the Federalist Society.
A story from the past is worth recalling. When the great Justice Oliver Wendell Holmes retired, President Herbert Hoover asked his Attorney General to supply him a list of ten names to fill the seat of this great justice. The list contained nine Republican names, but at the bottom was the name of one Democrat -- a great New York judge named Benjamin Cardozo. When Hoover saw the list, he reportedly said to his Attorney General, "It's a great list but you have it upside down. Cardozo's name should be on the top because he is the most distinguished sitting judge in the US." The Attorney General reportedly responded that Cardozo was a Democrat, a Jew (there was already one Jew on the Supreme Court, Louis Brandeis) and a New Yorker and his appointment would not serve the political interest of the president or his party. But Hoover nominated Cardozo who served with distinction on the High Court.
Today such a nomination would be unthinkable. Generally, presidents still look for high quality nominees, but among the many who are so qualified, they demand a nominee who will toe their ideological line, be acceptable to their base and generally promote the interests of their party. That is not what the Framers contemplated.
The Supreme Court is supposed to be above politics. It is supposed to serve as a check and balance against the two political branches of government. It is supposed to be non-partisan. The votes of justices are not supposed to be based on ideological or partisan considerations. The Framers would be livid at the 5-4 party line vote in Bush v. Gore. They would have been equally livid if there were a 5-4 partisan vote in favor of a Democratic president. Partisan votes are supposed to take place in Congress, not in the chambers of our Highest Court.
It may be too late to restore the integrity of the confirmation process. We are in the age of tit-for-tat political reprisals. The Democrats say that the Republicans stole the Merrick Garland nomination, so the Democrats want to try to steal the Kavanaugh nomination. They will almost certainly fail, but not before they have further tarnished the confirmation process.
It will take a statesman rather than a politician in the Oval Office to change this dynamic. A great president will someday nominate the most distinguished lawyer in the country, without regard to party ideology or other political considerations. All presidents claim that they are doing this. Former President George H. W. Bush told the American public that Clarence Thomas was the most qualified person in American to serve on the High Court. No one, probably not even Clarence Thomas, believed that. But he, too, was confirmed, largely along party line votes.
Justice Kavanaugh is extraordinarily well qualified by his educational and academic background and judicial history. He should be given a hearing and asked probing questions about his judicial philosophy and his approach to constitutional construction and precedent. Senators should approach this process with an open mind. Before I finally make up my own mind, I will be listening carefully to his answers.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case Against Impeaching Trump, Skyhorse Publishing, July 2018.