Photo courtesy of The New York Times
In recent weeks, the confirmation hearings of Judge Brett Kavanaugh to be an Associate Justice of the Supreme Court have dominated the news cycle. At the center of the debate over his confirmation is the question of whether the Senate should delay the proceedings until after the 2018 midterm elections have been held and the next session of Congress has been sworn in. To delay the hearings until after the election would be a mistake because it would weaken judicial independence, and there is no compelling procedural reason to do so.
The founding fathers conceived of a United States with an independent judiciary — insulated from the volatile leanings of popular opinion and partisan interests of politics. To delay the confirmation of any Supreme Court Justice until after an election so that the public may weigh in betrays this ideal. Calls to delay any confirmation hearing until after an election are part of a larger politicization of the judiciary in our society. Roe v. Wade, in 1973, changed the game. After that contentious case, politicians have, more than ever, valued outcomes over qualifications when selecting judges. To allow the confirmation to be delayed until after the midterm elections would only worsen this trend, as it would create a perverse incentive for lawmakers to appoint justices that will deliver outcomes the public desires.
Courts should be apolitical bodies; to allow the public to choose a new set of lawmakers based on how they would vote on a Supreme Court nominee is a scary prospect. If justice is to be protected in this country, judicial independence must be preserved. To dictate the composition of the courts based on public opinion would be the end of judicial independence and, consequently, the death of the American legal system.
Judicial independence aside, many feel that precedent for a delay has already been set. Such proponents are, rightfully, still angry over the events of early 2016, but the Senate must deviate from the obstructionist model set by Senator Mitch McConnell when he refused to consider the nomination of Merrick Garland. What happened to Judge Garland is inexcusable and a failure of the greatest magnitude; however, this injustice should not serve as the basis for more injustices. Senate rules do not stipulate that the President or Congress elected after a Justice’s departure from the bench are responsible for appointing his or her successor—the rules stipulate that the acting President or acting Congress are responsible for that appointment. In order to remain impartial, judges must not become subjective to the public through democratic elections, and Senator McConnell’s precedent must be ignored.
The Senate must refrain from vengeful action to atone for wrongdoing against President Obama’s Supreme Court nominee. If judicial independence is to be preserved, the Senate must not create a norm of waiting until after elections to appoint Justices. If the Kavanaugh hearing is to be delayed, it should not be on procedural grounds or to take away the sitting Congress’s authority to confirm him.
