Politicization of Courts is Abdication of Political Duty
Last week was four years in the making — starting when Senate Majority Leader Mitch McConnell rolled the dice and chose to block the confirmation of Merrick Garland to the Supreme Court, hoping for a Donald Trump victory in 2016. The gambit worked. Since then, a near-endless campaign has been underway, designed to secure as many judicial seats as possible in the years between presidential elections.
Nevertheless, the Trump Administration is on a recent judicial losing streak. Rather than considering how to craft legislative victories, the president instead turned to his platform of choice to vent his outrage and, essentially, lay out his re-election playbook in a series of tweets. “These horrible & politically charged decisions coming out the Supreme Court,” the President declared, “are shotgun blasts into the face of people that are proud to call themselves Republicans.” Soon after, the President declared that “we need NEW JUSTICES of the Supreme Court,” and promised to unveil a list of potential Supreme Court nominees before Election Day.
The boomerang of judicial politics from 2016 has returned. Polling showed this strategy worked to help the party secure victory in 2016, so why not rinse and repeat? In the years between, the Senate has prioritized the confirmation of judicial nominees — to tremendous success. Indeed, McConnell named the confirmation of Neil Gorsuch his greatest political accomplishment and claimed in a Fox News interview that filling judicial vacancies was “the most important long-term thing we can do for the country and yes, it’s my top priority.”
A legislature that has deprioritized legislating may seem haphazard. But it is, regrettably, deliberate. Delegating political responsibility is good business, especially in the endless campaign cycle Washington’s embraced. There is plenty of credit in naming and confirming judges with little responsibility for their subsequent decisions.
But lawmakers must resist the temptation to turn judicial politics into a core piece of their legislative identity. The Supreme Court issued Brown v. Board of Education, but Congress passed the Civil Rights Act of 1964. United States v. Nixon was a blow to the President’s cover up, but the House’s impeachment proceedings dealt the fatal strike. Last week’s Title VII decision did not find gay or transgender employment protections from whole cloth, but from a law written by Congress fifty-six years earlier. And the Court’s DACA decision stemmed from agency shortcuts, a consequence of the White House failing to reach any sort of political agreement with Congress.
Just this term, the Supreme Court has also been tasked to consider cases that touch on immigration policy, abortion restrictions, and expanded employment protections. Past terms in recent years have considered the limits of the Affordable Care Act, partisan gerrymandering, digital privacy, and gun rights, all difficult and contentious policy subjects.
Congress had the power to address any of these topics. It chose not to, and unfortunately, the long-term consequences of fueling an apolitical branch, hoping it fights the policy battles Congress is unwilling to, are dire.
After all, high stakes policy fights in the wrong arena cannot last. Indeed, as partisans believe they need the courts to enact change; others partisans work just as hard to stop it. Norms are eroded. Qualified candidates are ignored for political expediency.
Yet neither the President or McConnell’s judicial playbook should suggest that the judiciary is hopelessly partisan. But it does lead some to believe the regrettable (and false) conclusion that the only way to enact long-standing policy change is not through Congress or the White House, but through the courts. Coupled with the president’s own attacks on judges for unfavorable rulings, an unfortunate cycle becomes more clear: Congress continues to cede power, voters increasingly look elsewhere for lasting change, and the only federal options left are the courts or erratic executive orders. This turns the judiciary into a reluctant political battlefield that is not built with independence or nuance in mind — only politics.
But now the good news: Through it all the public still holds the federal judiciary in high regard, even though it is often the focus of all public ire. But this confidence is not guaranteed. As Alexander Hamilton assured 18th century readers in Federalist 78, federal courts have “neither force nor will, but merely judgment.” The judiciary’s strength is their legitimacy. Without it, there is little reason to respect its decisions or carry their orders out. An illegitimate judiciary provides little check against a lawless president, a legislative usurper, or rogue governor.
The politicization of judges is more than filling vacancies and wishing for the overturn of bad decisions. It is an alarming abdication of political duty. Further, it is a stain on the judiciary itself, and tragically a campaign that has little to do with the judges themselves.
Anthony Marcum is a fellow for the Governance Project at the R Street Institute.