Two experts on the United States Supreme Court expressed concerns Thursday during an \u201cOn the Issues with Mike Gousha\u201d program at Marquette Law School that the level of partisanship in confirmation processes for justices is causing damage to the court itself.<\/p>\n
David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, said, \u201cThings have become a lot more partisan in a way that I think is really damaging for the court as an institution.\u201d<\/p>\n
Strauss said, that, even though partisanship has long been a part of confirming court nominees, among senators overall, \u201cthere was a consensus that we really have to kind of make sure that we take care of the court.\u201d 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.<\/p>\n
\u201cI think it has taken a turn for the much more partisan,\u201d Strauss said. \u201dWhat\u2019s really troubling about it . . . Once that happens, it is very hard to dig yourself out of it.\u201d<\/p>\n
Ernest A. Young, Alston & Bird Professor of Law at Duke University, said, \u201cI don\u2019t think the people being nominated have changed\u201d when it comes to qualifications and character. \u201cThere\u2019s not a different sort of people being nominated.\u201d But, he said, \u201cwe\u2019ve lost faith that a judge is all that different from a politician.\u201d<\/p>\n
Gousha, the Law School\u2019s distinguished fellow in law and public policy, asked if that is damaging in the long term. \u201cI think it\u2019s very damaging,\u201d Young said. He said it\u2019s 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. \u201cWe\u2019re seeing those bombs go off now from time to time.\u201d<\/p>\n
Strauss said, \u201cWe think the constitution, the document, what\u2019s written down, is our safeguard . \u00a0. \u00a0. . But an awful lot of what protects us is not written down . . . It\u2019s just understandings that you don\u2019t go to the limit, you don\u2019t play hardball. There are things (that) yes, the document allows you to do, but you don\u2019t do it because that\u2019s no way to run a government. \u00a0Those things which used to be taboos and certainly norms are now being eroded.\u201d<\/p>\n
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.<\/p>\n
Young said, \u201cWe are in an age of hardball now, you do what you have the votes to do.\u201d He said, \u201cThere used to be a norm of deference to a president\u2019s choice unless you could say that the person was just fundamentally unqualified or a bad person.\u201d You didn\u2019t vote against someone just because you disagreed with their philosophy. Maybe that wasn\u2019t healthy, he said, and it might be healthier just to have senators say, \u201cThat person is too conservative for me.\u201d<\/p>\n
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.<\/p>\n
He asked Young and Struass to characterize the Supreme Court, based on the last several years.<\/p>\n
Young called it \u201cfairly balanced, but leaning somewhat conservative.\u201d 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.<\/p>\n
Strauss said he is inclined to call the current court very conservative, but he agreed that Young\u2019s 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.<\/p>\n
The focus of Young\u2019s 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<\/em> (Oxford, 2010). He is an editor of the Supreme Court Review and he has argued 19 cases before the Supreme Court.<\/p>\n