There was a piece aired during Campbell Brown’s No Bias, No Bull show on CNN this evening in which she discussed the Supreme Court. As you should know, the Supreme Court is currently composed of nine judges, all of whom serve for life or until resignation or retirement. When a vacancy occurs anyone can be nominated by the sitting President of the United States (POTUS) to fill the gap and, following a majority vote by the United States Senate, the nominee becomes a justice of the Court.
I think it is obvious to most people that it is in the best interest of the President to select someone who shares their views on all things political; conservative presidents should select conservative judges and vice versa. President Eisenhower said that appointing a liberal judge that he mistakenly thought was conservative was the “…biggest damn fool mistake [he] ever made.” What did that judge, Chief Justice Earl Warren, do to upset Ike? He voted in favor of desegregating public schools in the landmark Brown vs. Board of Education decision. It is my contention that in certain situations, pushing their political agenda would be exceptionally irresponsible of the Commander-in-Chief and, dare I say, un-Presidential.
The Supreme Court exists to “…say what the law is,” as brilliantly-stated by Chief Justice John Marshall in the 1803 case Marbury vs. Madison. The justices are not there to make laws, commonly referred to as ‘legislating from the bench.’ Instead, they are supposed to remain completely impartial, interpret laws as they are written and compare their legality to what is provided by the Constitution. However, there is nothing in place to ensure that this happens other than the possiblitity of impeachment of a justice by Congress, Congress overturning a decision by the Court, or a future Court overturning the decision reached by an earlier Court, all of which are exceptionally rare. It is because of this that there exists the possibility of enduring a Court with a specific and obvious political bias regarding the cases that are heard.
Of the nine current members, four are considered conservative (Chief Roberts, Scalia, Thomas, Alito), four others are considered liberal (Stevens, Souter, Ginsburg, Breyer), and another is considered to be an independant conservative (Kennedy). This is an excellent balance in our two-party system because both parties are evenly represented, and in the event of a highly-partisan issue being brought before the court it will be up to someone who is considered to be politically impartial, at least moreso than the other justices, to decide the case. Essentially, this balance serves as a safeguard against a political ideology deciding the law instead of impartial reason, logic and precedent.
Unfortunately, many of the justices are getting quite old, which increases at an increasing rate the odds that they will die, resign or retire during one of the next few Presidential administrations. Stevens is 88, Ginsburg is 75, Scalia and Kennedy are 72, Breyer is 70, Souter is 69 and the others are, comparitively speaking, spring chickens at 60, 58 and 55. Of the justices considered to be conservative, only one made my list of those six I arbitrarily consider to be ‘getting old.’ Most problematic, though, is that all four liberals and the one semi-independent made the list.
This brings me to the issue of Presidential responsibility when selecting justices. Under a McCain/Palin Administration, what are the chances that if all four liberal judges were to die, resign or retire that they would be replaced by four other liberal judges in the interest of preserving the political balance of the Court? Probably close to what they would be if the tables were switched, with an Obama/Biden Administration and four conservative justices leaving the bench. It seems to me, though, that Presidents should see it as their responsibility, their Presidential Duty if you will, to do what they can to preserve the political balance in the highest court in the land for the sake of fairly “…say[ing] what the law is.”
