Two experts on the United States Supreme Court expressed concerns Thursday during an “On the Issues with Mike Gousha” program at Marquette Law School that the level of partisanship in confirmation processes for justices is causing damage to the court itself.

David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, said, “Things have become a lot more partisan in a way that I think is really damaging for the court as an institution.”

Strauss said, that, even though partisanship has long been a part of confirming court nominees, among senators overall, “there was a consensus that we really have to kind of make sure that we take care of the court.” That meant approving well-qualified candidates who would be respected and do their jobs well, with less attention paid to their partisanship. That has eroded, he said.

“I think it has taken a turn for the much more partisan,” Strauss said. ”What’s really troubling about it . . . Once that happens, it is very hard to dig yourself out of it.”

Ernest A. Young, Alston & Bird Professor of Law at Duke University, said, “I don’t think the people being nominated have changed” when it comes to qualifications and character. “There’s not a different sort of people being nominated.” But, he said, “we’ve lost faith that a judge is all that different from a politician.”

Gousha, the Law School’s distinguished fellow in law and public policy, asked if that is damaging in the long term. “I think it’s very damaging,” Young said. He said it’s one of the ways in which the justice system can break down. In the past, steps such as shutting down the government were viewed as deterrents that were not used, like nuclear weapons, he said. “We’re seeing those bombs go off now from time to time.”

Strauss said, “We think the constitution, the document, what’s written down, is our safeguard .  .  . . But an awful lot of what protects us is not written down . . . It’s just understandings that you don’t go to the limit, you don’t play hardball. There are things (that) yes, the document allows you to do, but you don’t do it because that’s no way to run a government.  Those things which used to be taboos and certainly norms are now being eroded.”

Strauss said that into the 1990s, nominations by both Republican and Democratic presidents received approval by large majorities in the Senate, sometimes even when the Senate majority was not from the same party as the president.

Young said, “We are in an age of hardball now, you do what you have the votes to do.” He said, “There used to be a norm of deference to a president’s choice unless you could say that the person was just fundamentally unqualified or a bad person.” You didn’t vote against someone just because you disagreed with their philosophy. Maybe that wasn’t healthy, he said, and it might be healthier just to have senators say, “That person is too conservative for me.”

Gousha said he was not going to ask Young and Strauss for comment on the current controversies over the nomination of Judge Brett Kavanaugh to the Supreme Court.

He asked Young and Struass to characterize the Supreme Court, based on the last several years.

Young called it “fairly balanced, but leaning somewhat conservative.” People should keep in mind, he said, that there have been areas such as gay rights and issues related to presidential actions in the name of national security where court decisions could be labeled liberal. The Warren court of a half century ago, regarded widely as liberal, never took on those issues, he said.

Strauss said he is inclined to call the current court very conservative, but he agreed that Young’s examples were worth keeping in mind. He named other issues, though, such as decision on voting rights and campaign financing, where the court had taken conservative actions.

The focus of Young’s scholarly work has included the role of history in American constitutionalism. He is a graduate of Harvard Law School and served as a clerk to Justice David H. Souter on the Supreme Court. Strauss is the author of The Living Constitution (Oxford, 2010). He is an editor of the Supreme Court Review and he has argued 19 cases before the Supreme Court.

The two also delivered the 2018 Robert Boden Lecture at Marquette Law School as part of their visit on Thursday. The lecture, “Dying Constitutionalism and the Fourteenth Amendment,” will appear in a future issue of Marquette Lawyer magazine.

To watch video of the one-hour “On the Issues” program, click here.