The first qualification of judges is often an ability to serve as an apolitical arbiter of laws and rights, insulated from the tumult of politics, at least in republics predicated on separation of powers. Since the 2016 American presidential election, leading up to which Senate Republicans refused to consider the Supreme Court nominee of outgoing president Barack Obama, trust in the American Supreme Court has declined by fifteen percentage points. Offering the rationale that the American people ought to decide the alignment of the next Supreme Court nominee with an upcoming election, Senate Republicans stonewalled Merrick Garland, Obama’s nominee and current U.S. Attorney General under President Joe Biden, and refused to grant him so much as a hearing. This tactic worked, with the seat vacated by deceased Justice Antonin Scalia left open during the election season and filled by Conservative Justice Neil Gorsuch, nominated by Republican President Donald Trump in January 2017 and confirmed by a Republican Senate in April.
The looming threat of an open seat on the highest court in the land, with politically crucial cases on abortion and voting rights promised in the coming years, proved to be a crucial motivator for more moderate Republicans who may have been otherwise turned off by the brash nominee. 56% of 2016 Trump voters reported that Supreme Court appointments were the most important factor in their vote, compared to only 21% of voters at large. However, despite the political expediency of these maneuvers for the Republican Party and a conservative movement focused on utilizing the judicial branch to control hot-button issues such as abortion, free speech, and voting rights, the decreased public perception of judicial independence has taken centre stage in the confirmation hearings of President Biden’s nominee to replace retiring Justice Stephen Breyer, Judge Ketanji Brown Jackson.
A two-time Harvard graduate, former federal public defender, former law clerk to Justice Breyer, and current federal appellate judge on the 12th Circuit Court based in Washington, DC, Judge Jackson is the first ever Black woman nominated to the Supreme Court. Her nomination, if it were to be successful, would not alter the 6-3 Conservative ideological bent of the court, and according to legal scholars who have extensively analyzed over 500 of her opinions, her judicial ideology is likely to be quite similar to her predecessor and former boss’s. Following her nomination, Republican senators have attacked Judge Jackson’s independence, with Senate Minority Leader Mitch McConnell referring to her as “the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself.” McConnell’s argument implicitly undermines Judge Jackson’s independence, aligning her with leftist political groups and implying that this alignment, which is unsupported by evidence, would alter Judge Jackson’s judicial decisions. Senators have also questioned Judge Jackson’s personal bias, noting that an uncle of hers was sentenced to life in prison for drug offenses and had his sentence commuted in 2016. In response to attacks on her neutrality, in her confirmation hearings, Judge Jackson has emphasized her independence, asserting that she applies the law to the facts of the case before her “without fear or favor,” consistent with her judicial oath. Given her experience as a former public defender, Republicans have suggested that Judge Jackson was nominated as part of a political effort by the Biden administration to install judges who favor lighter sentences for convicts. At the heart of these arguments is a contention that Judge Jackson, rather than acting as a neutral jurist sworn to apply the Constitution, would serve as a political actor to advance the policy priorities of the Democratic president who has nominated her.
Disheartening as it may be to watch partisan squabbling over a supposedly apolitical institution, the trend towards politicization of a branch intended to be insulated from politics is far from novel. The mechanism for new justices to be elevated to the bench, beginning with a nomination from the head of the executive branch and requiring confirmation by the legislative branch, by necessity involves political maneuvering due to the political nature of these two branches of government. However, as documented by political statistics website FiveThirtyEight, Judge Jackson’s former boss was confirmed to the bench in July 1994 by an 87 to 9 margin, including 79% of Republican senators. This is a far cry from the bitterly fought battles to confirm Judge Garland (unsuccessfully), and President Trump’s three successful nominees, which came down to party-line votes with bitter politicking. While Supreme Court nominations may have always involved politics, never has it been so clear and contentious as in the past decade.
Justice Oliver Wendell Holmes, Jr., one of the most famous jurists to sit on the Supreme Court has argued that judicial neutrality is not only unrealistic, but undesirable. Justice Holmes sat on the Supreme Court from 1902 to 1932, and is one of the most frequently cited and most influential justices ever to sit on the Court, noted for his opinions on civil liberties and general deference to the actions of elected bodies. Justice Holmes writes that, “The life of the law has not been logic, it has been experience,” prioritizing the lived experiences of jurists and petitioners over purely intellectual legal reasoning. A noted legal realist opposed to the ideals of natural law, Justice Holmes argues that judicial decisions always reflect the norms of the society from which judges are drawn, and rejects the concept of the law as an orderly system of directives that can be neatly and impartially applied to individual cases. Thus, pursuant to Justice Holmes’ argument, not a single judge or justice has ever been impartial and neutral, nor will any ever be. Utilizing this perspective of legal realism, attacks on Judge Jackson for perceived lack of neutrality stemming from her personal background or political inclinations would simply be stating the obvious – that all justices bring with them a history that colours their decisions. As Justice Holmes would conclude, there is nothing wrong with such a history, and it in fact strengthens jurisprudence and advances the profession as a whole.
Edited by Victorine Sirveaux
The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Studies or the Political Science Students’ Association.
Featured image by Geoff Livingston and obtained via Flickr under an Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)