Tilting at the Supreme Court

I love it when the media conducts polls on complex issues that the general public doesn't really know enough to have an informed opinion about. The latest one is a poll that showed up in the Washington Post showing that the public perceived the Supreme Court has moved to the right and that a growing number think it's moved too far to the right.

About half of the public thinks the Supreme Court is generally balanced in its decisions, but a growing number of Americans say the court has become "too conservative" in the two years since President Bush began nominating justices, according to a new Washington Post-ABC News poll.

Nearly a third of the public -- 31 percent -- thinks the court is too far to the right, a noticeable jump since the question was last asked in July 2005. That's when Bush nominated John G. Roberts Jr. to the court and, in the six-month period that followed, the Senate approved Roberts as chief justice and confirmed Justice Samuel A. Alito Jr.

If 31% think that the Court is too far to the right, I guess that means that the great majority thinks that the Court is either just right or too liberal. Well, yes, I'll agree, along with ABC reporter Jan Crawford Greenburg, that the Court has moved slightly to the right as John Roberts and Sam Alito have joined the Court. But, as Greenburg pointed out a couple of weeks ago, the shift isn't as extreme as some liberals would like to portray it as.

There’s no question the Court made a conservative turn this year. There’s no question the addition of Roberts and Alito made a difference—as conservatives hoped and liberals feared. There’s no question that could have an enormous impact on American life. But let’s have an honest debate about what the Court actually did—and what that actually will mean.

The Court did move to the Right. If conservatives were prone to dance in the streets, this would be cause for at least a little jig, though not necessarily a full-scale chorus line. The moves were significant—no matter how conservatives try to downplay them. But they also were modest—despite what you may hear from the Chicken Littles with their hair on fire.

What is behind all the scare language about the Court? The real motivation is to strengthen the myth that conservatives support justices who are so extreme that liberals should be allowed to do whatever possible in order to fight the dark force that is the conservative push for justices who don't support a liberal agenda for the Court.

So, for example, we have Senator Schumer giving a speech announcing that he thinks the Democrats should block any Bush Supreme Court nominee.

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

Of course, there is nothing new about Schumer's approach. He's opposed Bush's judicial nominees from the get go. Now he's claiming that the Judiciary Committee was "hoodwinked" by Roberts and Alito. What evidence there is of their being hoodwinked is not clear. Yes, Roberts and Alito present a difference to the Court just as the advent of Ruth Bader Ginsburg was a change from Byron White. That's what happens all the time with the Court. In fact, the Court would be much different if Republican nominees such as Justices Stevens, Kennedy, and Souter had turned out as conservative as one might have expected for Republican nominees.

Also, last week there was an amazingly loopy column in the New York Times by biographer Jean Edward Smith. After asserting that it is dangerous if the Court is manifestly ideological in its decisions, then it is time for a political solution: having the majority party vote to pack the Court. He then reviews the history of how Congresses in the past have tinkered with the number of justices for political reasons and gives his blessing for the Democrats to try yet again to raise the number so that they can stack the Court's lineup more favorably.

Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

I was so sorry to see Mr. Smith be the one to argue this dopey idea. Earlier this summer I'd so enjoyed his biography of John Marshall (which I reviewed here) and am looking forward to reading his biographies of Ulysses Grant and FDR. It's a shame to see Smith endorse such a weird idea that, after 139 years, this would be the time to alter the number of justices. He doesn't even offer any substantive evidence that the Court has shifted as ideologically as he worries about. As he points out, FDR's scheme to pack the Court didn't work and one of the main reasons it failed was that Democratic senators didn't support his plan. Who knows if Democrats today would balk at such a plan today. Of course, if any Democratic plan would unite Republicans to block such a plan. Without 67 Democratic senators and a Democratic president, they couldn't get such a plan through.

But such an adamantine approach to the Supreme Court nominations seems so short-sided for the Democrats. If they succeed in getting a Democrat elected in 2008 and there is then an opportunity for a Democratic nominee, do they think that the Republicans are going to be as supine now as they were for Democratic nominees. They'll be able to point to Chuck Schumer's approach that the presumption of confirmation should be reversed. They'll be able to point to such unfair approaches to Appellate nominees as what Judge Southwick is experiencing now as Stuart Taylor writes in the National Journal.

Senate Democrats' treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president's liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

And we might think that the Republicans wouldn't have the gumption to serve the Democrats the same soup that the Democrats have been serving Bush since 2001, yet at least one Republican leader gets it.

But as Senate Republican Leader Mitch McConnell has said, "It's important for our friends on the other side of the aisle to remember that against the best efforts of people like me, they might be appointing judges 18 months from now. And these lessons tend to be remembered, particularly in the short term.... It's not too late to keep the Circuit judge situation from spiraling downward. And, I think, confirming Judge Southwick would be a good place to start."

Otherwise, Republican senators will take their revenge on well-qualified liberal nominees during the next Democratic administration. The confirmation process will continue to become an ever-uglier ordeal. And sooner or later, the best and brightest lawyers just won't put themselves through it.

For the nation, it would be nice if everyone would just climb down, but since the days of Thomas Jefferson and John Marshall, partisans have complained about the Court's partisan tilt. That's what FDR's court-packing plot was all about. It failed then, and it would fail again. But talk about how the Court has suddenly shifted to the right, without any substantive proof serves to create a myth that the Chuck Schumers and Ralph Neas of the world hope will be come the accepted conventional wisdom. Just as they painted a caricature of Clarence Thomas that many now believe is the true portrait, they're hoping to do the same thing with John Roberts and Samuel Alito.