Conservatives: On SCOTUS, You Owe the Left One

Political elites are gearing up for another Supreme Court contest. Most of us would like less fanfare than the last three contests. That’s why conservatives should give the Left some leeway on this nominee.

Did that statement set off your partisan radar? Let’s start with a less politically charged and more abstract case.

Let’s say you learn that, by pressing a button, you can convert all nine Supreme Court justices to your ideology. They would all agree with you and produce rulings that you like. Should you press the button?

This question has a correct answer: No, you shouldn’t press it. You shouldn’t want the justices to have the same views. To check that intuition, imagine all nine justices disagreed with you and that their rulings oppose your values. You would be despondent.

The Supreme Court is not a democratic body; it should interpret, not make, law. All the same, it should balance a range of perspectives — at least to some extent. A 9-0 conservative court would have people who all think in the same way. You already despise this kind of groupthink on university campuses. Why would such unanimity be good for the Court? It would produce rulings that much of the country could not accept.

Today the Court is 6-3 conservative, or 5.5–4.5 if you think Chief Justice John Roberts is squishy. The Court became more conservative through some rule changes that look arbitrary or partisan, at least to the Left. The Merrick Garland incident convinced many on the Left that conservatives break the rules to win. It helps explain why Brett Kavanaugh’s nomination almost led to violence. The SCOTUS nomination process is a polarized, partisan disgrace.

The Court, in my view, should not make public policy on abortion. Most democratic countries address this issue with far less hatred and rage, and that is because they make abortion policy through legislation, not judicial fiat. A centralized court corrupts our politics. We have an understandable desire for policy victories, but this desire gets funneled into guessing games about judicial nominees. We vote for some candidates we despise based simply on who they will nominate to the bench.

The Supreme Court will have enormous power for the foreseeable future. We want a Court that the public generally sees as legitimate. A Court that gets too lopsided produces resentment and alienation, as it already has on the Left — and as it did on the Right for decades earlier. I do not argue that the Court should balance all ideological perspectives. Some ideologies are closer to the truth than others. But we want a reasonably balanced Court to ensure that policymaking represents most Americans’ values.

In American politics, we lie to ourselves. Some of us sincerely believe that the Court does not make policy. It shouldn’t, but it does. For various reasons, we force Supreme Court justices into that position.

Pushing for justices that agree with you is part of political life. The justices are super-legislators. And that’s true no matter what judicial philosophy you have. I prefer a textualist approach, and I am glad that the Court is conservative.

But I have dear friends on the Left. And when the Court comes up, I hear their anger with the GOP’s partisan approach to nominations.

Frankly, I get it. I know that Republicans would not let President Obama replace Antonin Scalia. The stakes were too high. And due to polarization, confirming a compromise candidate also wasn’t in the cards. Compromise is no longer in the Republican Party’s DNA. But the event drove a wedge between different sides of our political elite.

For this reason, as a judicial conservative, I think that the GOP should confirm President Biden’s nominee, after a routine, nonpartisan vetting.

I don’t mean that the GOP should let just anyone through. The Democrats would like a clean, bipartisan victory, and that means that Republicans have some leverage in whom they confirm. The nominee will likely run to retiring Justice Stephen Breyer’s left on issues where he was more of a centrist, such as criminal justice reform.

But the GOP has grounds to favor justices that seem less hostile to their priorities. Perhaps affirmative action law or criminal justice law will help the GOP rank potential nominees. The Court seems strongly conservative on abortion and religious liberty, so conservatives might focus less on those issues in this particular nomination process.

We should support ideological diversity and vigorous and thoughtful debate. Let’s get the best justice confirmed. Liberals need bolstering. We need to lower the temperature from Donald Trump’s picks. Going for the kill is bad practice in a democracy because iron sharpens iron. We want to avoid disorder, chaos, and bitterness. We should want to keep the country together.

So, conservatives, let’s give the Democrats a break and confirm their nominee, with minimal rancor and modest strategizing.

Kevin Vallier is an Associate Professor of Philosophy at Bowling Green State University. Follow him on twitter @kvallier.