Have our courts – intended by America’s founders to be an independent arbiter of justice – turned into another political battlefield? Are today’s judges mere “politicians in robes”?
That question is all the more timely with the Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg in September 2020 — weeks before a presidential election. This public radio documentary series looks at how the nomination of judges has become politicized. We consider key flashpoint in recent decades: The bruising nomination hearings for new judges like Brett Kavanaugh and Clarence Thomas. The Supreme Court halting an election recount to decide by a one-vote margin who becomes president of the United States. Special interest groups on both sides of the political divide spending millions to influence which judges are selected.
Parts 1 and 2 reconstruct the wild history of how we got into this dilemma, which has left bitter feelings on all sides. What effect does this have on the functioning of our democracy? And, in upcoming episodes, we’ll consider a variety of proposals to reduce the political influence on our courts.
Supported by the Democracy Fund and the Humankind Program Fund, in association with Documentary Educational Resources. Recording engineer: Antonio Oliart Ros. Associate producer: Marc Kilstein. Special thanks to Noel Flatt, Cathy Graham, Steve Martin, Jake Cavicchi, Laura Carlo and Shawn Johnson/Wisconsin Public Radio.
1: Our Divided Court
Because federal judges are nominated by the president and confirmed the U.S. Senate, inevitably the process is somewhat politicized. But as hyper-partisanship has corrosively swept across American life, we’ll explore whether our judiciary has been infected.
The Constitution’s framers well understood that democracy is chaotic and messy. And they designed the judiciary to be relatively insulated from the volatility of our fractious politics. “The complete independence of the courts,” wrote Alexander Hamilton in the Federalist Papers “is particularly essential in a limited Constitution.” Lifetime appointments of federal judges and a respect for jurisprudential precedent were intended to promote stability.
It’s an incredibly important thing for the court to guard this reputation of being fair, of being impartial, of not being simply an extension of the terribly polarized political environment.”
–Supreme Ct. Justice Elena Kagan
Fair Play: The ideal of impartial judges
Our documentary project will examine whether this central characteristic of the judiciary is undermined by America’s present state of politicization – now touching practically every aspect of our society, from popular culture to public health.
Here we consider several clashes over our courts:
- In April 2020, in the first weeks of the U.S. coronavirus outbreak, the U.S. Supreme Court ruled that the Wisconsin presidential primary could not be delayed by a week to allow voters to use mail-in ballots.
- The revelation in 1937 that a justice then sitting on the Supreme Court had been a member of the Ku Klux Klan.
- The 1987 confrontation that set the stage for many battles to come, when Supreme Court nominee Robert Bork was ultimately blocked by vocal liberal opposition.
- The sexual assault allegations in 1991 by Anita Hill against Judge Clarence Thomas.
- The Florida recount case, in which the court decided by a 5-4 margin that George W. Bush would become president.
My name has been harmed, my integrity has been harmed. My character has been harmed.”
– Judge Clarence Thomas, responding to charges of sexual harassment
It did strike many people as a political decision by the Supreme Court. This is something that lasts.”
– Robert Barnes, Washington Post Supreme Court reporter on the 2000 case deciding the presidential election
2: Politicians in Robes?
The [Senate] rules changes have really had an impact. They’ve made it possible for the Trump administration to populate the courts.”
– Carl Hulse, New York Times
chief Washington correspondent and author, “Confirmation Bias”
In this divisive climate, will the frequency of 5-4 decisions by the Supreme Court increase, as Justice Ruth Bader Ginsburg suggested in June 2019? Will rulings follow the predictable blocs of liberal and conservative justices, strongly associated with the party of the president who appointed them? How will this affect public confidence in the court, or at least support of “the way the Supreme Court is handling its job”, as measured by Gallup? As of October 2019 public approval broke down sharply along party lines (73% by Republicans and 38% by Democrats).
All of these concerns have direct impact on the Court’s jurisprudence regarding key issues of the day: health care access, voting rights, immigration, environmental protection, abortion, the power of labor unions, LGBT rights and an issue that has recently come to the fore: compliance with subpoenas.
I just thought that was an immoral, gross abuse of power that should never happen again.”
– Chief Justice Leah Ward Sears (ret.), Georgia Supreme Court
on refusing to hold a hearing for President Obama’s high court nominee
The battlelines harden
In this segment, we revisit a number of more recent chapters in the “judicial wars”:
- Republican Senator Mitch McConnell’s unprecedented refusal to consider President Obama’s Supreme Court nominee, Merrick Garland, following the sudden death of conservative judicial icon Antonin Scalia. McConnell asserted that the Senate should wait eleven months until a new president was elected.
- The powerful Senate rules changes by both Democrats and Republicans over how nominees are handled – all but ensuring continued intense partisan showdowns.
- The incendiary hearings involving allegations of rape by Prof. Christine Blasey Ford against Supreme Court nominee Brett Kavanaugh, who was ultimately confirmed by a two-vote margin.
We’ll also hear interesting comments by two justices, Elena Kagan and Sonia Sotomayor, about ways the nine justices try to maintain cordial relations, even when passionately disagreeing.
Drinking is one thing, but the concern is about truthfulness.”
– Senator Amy Klobuchar questioning Supreme Court nominee Brett Kavanaugh
This whole effort has been a calculated and orchestrated political hit.”
– Judge Kavanaugh before being confirmed
To learn more:
- Confirmation Bias, excellent account of judicial politics by Carl Hulse, New York Times chief Washington correspondondent
- Supreme Ambition, the story of Brett Kavanaugh’s rise to the high court, by Ruth Marcus, Washington Post columnist
- Supreme Revenge, a powerful recounting of recent judicial wars, by PBS’ superb Frontline
- The Chief, the life and turbulent times of Chief Justice John Roberts, by Joan Biskupic
- Annual Gallup Poll on public approval/disapproval of the U.S. Supreme Court
- I’m the Judge Who Won in Wisconsin. This Principle is More Important Than Winning, by Jill J. Karofsky, New York Times, April 7, 2020