Federal Courts and Nominations

Mellman: What’s wanted in a Supreme Court justice

In a [voter] survey we conducted for the Constitutional Accountability Center… the largest number said it was at least very important that a justice “protects civil rights,” “protects equal rights,” “prevents racial discrimination” and “protects free speech.” Eighty-seven to 90 percent labeled each of those at least very important.

What do Americans want from the next Supreme Court justice?

First and foremost, they want a consensus nominee.

By creating the possibility of a purely partisan pick, Senate Majority Leader Mitch McConnell (R-Ky.) did great violence to our political process that will reverberate for decades.

Eliminating the filibuster for Supreme Court nominees enables a bare and temporary partisan majority, now of Republicans, perhaps someday of Democrats, to impose their will on the nation, far into the future.

It obviates the need for this, or future, presidents to nominate someone who can bridge divides, uniting the Senate and the country.

The Founders recognized the uniquely important nature of the Supreme Court. Though it controls neither a military force like the executive, nor a budget like the legislative branch, the Supreme Court alone has the moral and legal authority to decide what is and is not constitutionally acceptable.

Once its justices take up their lifetime appointments they are, by design, beyond the reach of voters, Congresses and presidents.

For most of our history, wise legislators recognized that the health of our democracy required justices who can command a consensus.

Only eight Supreme Court justices in the history of the republic have been confirmed with less than 60 percent of the Senate. (There was a time when senators did not filibuster every court nominee, so confirmation with fewer than 60 votes was possible.)

Conservative ideologues are among those who elicited consensus. Antonin Scalia received 98 votes, John Roberts 78. Warren Burger got 74 votes, and William Rehnquist 68.

Wiser than many of their leaders, the American public continues to advocate a 60-vote threshold for Supreme Court justices.

In a survey we conducted for the Constitutional Accountability Center last year, just 33 percent agreed with the proposition that “When the president nominates a justice to the Supreme Court, it should only take the votes of 51 of the 100 senators to confirm the nominee and make them a Supreme Court Justice.”

By contrast, 61 percent maintained “a nominee should have to get the support of at least 60 of the 100 senators.”

While GOPers are more willing to accept 51 votes (55 percent) in this Republican era, still 40 percent of Republicans want a 60-vote threshold.

The public understands what Senate Republicans do not—the consensus required to get 60 votes is a vital public good.

A consensus nominee was not the only thing Americans were looking for, according to our survey for CAC.

We listed some 20 qualities of a potential justice and asked how important each was.

The largest number said it was at least very important that a justice “protects civil rights,” “protects equal rights,” “prevents racial discrimination” and “protects free speech.” Eighty-seven to 90 percent labeled each of those at least very important.

I wonder how much President Trump focused on those issues in his interviews with prospective nominees and how many questions from senators will tackle those topics?

Then of course is the nominee’s fundamental approach to the Constitution. The president and his allies often talk about the need to interpret the Constitution “according to the original meaning of text as written.”

A larger number of Americans, 75 percent, have a more expansive view, backing a justice who will interpret our founding document “taking into account its text, history, and values.”

As you read though this list of public preferences, ask yourself how many of the public’s desires for a justice are going to be accommodated by President Trump’s selection of Brett Kavanaugh.

I fear, almost none.

Which is to say, the bare Republican majority in the Senate may be representing their party well, but they are failing their constituents and their country.