On Tuesday night, President Trump will officially announce his nominee to fill the Supreme Court seat left vacant by Justice Antonin Scalia’s death and the unprecedented refusal by Senate Republicans to even consider President Obama’s moderate choice to succeed Scalia, Merrick Garland. That tainted history, understandably, along with the nominee’s judicial philosophy and approach to reproductive and voting rights, Citizens United, immigration, and the meaning of religious liberty, are bound to dominate the confirmation process.
But the advise and consent exercise should not lose sight of another vital if under-discussed attribute for a would-be justice: a healthy dose of independence.
While not as easy to nail down as the familiar checklist of litmus test issues, it’s a critically important quality, especially after the new president’s tumultuous first week. Preserving Americans’ rights and basic constitutional values depends on having justices with the strength and willingness to stand up against serious abuses of power – even if it means rising above usual ideological alliances to reject bad behavior and legal arguments by the White House occupant who named them.
This goes to the essence of the role of courts envisioned by the nation’s founders. And these times imbue this sort of confirmation scrutiny with a certain urgency. It took Richard Nixon, another president with well-known anti-democratic tendencies, several years to provoke a constitutional crisis. President Trump managed to do it in just eight days, with his odious immigration ban.
The strength of America’s democracy owes much to the wisdom, fortitude, and, yes, independence shown by Supreme Court justices – both Republican and Democratic appointees – who acted to preserve the rule of law and constitutional rights at critical moments. Going back to the Nixon era, in 1971 a landmark Supreme Court decision joined by four Democratic and two Republican appointees rebuffed his administration’s interference with freedom of the press in attempting to block the New York Times and Washington Post from publishing a classified government history of the Vietnam War, known as the Pentagon Papers, on overwrought national security grounds. Three years later, a unanimous Supreme Court, including five Republican and three Democratic appointees (one justice did not participate owing to a conflict) ruled against Nixon’s refusal to hand over audio tapes implicating him in the Watergate scandal in response to a valid subpoena. The decision, affirming that no president is above the law, effectively ended Nixon’s presidency.
Would the new Supreme Court nominee have joined in those historic and justifiably well-admired rulings had they been sitting on the high court at the time? Or would some combination of ideological rigidity and party loyalty likely have blinded them to the constitutional offense? Senators on both sides of the aisle owe a duty to reflect on those questions.
Sound, independent judging requires independent judges – people with the instinct and character to move past ideological and political preferences in order to do right by the evidence, the law, and the country, even during times of political stress.
It’s perhaps telling that some of the most sterling examples of constructive independence through the years are dissents. A prime example is Justice Robert Jackson’s warning in Korematsu v. United States that the Court’s ignominious 1944 decision upholding the internment of Japanese-Americans “validate[s] the principle of racial discrimination” and sets a dangerous precedent. Looking back further, there is the sole dissent of Justice John Marshall Harlan in Plessy v. Ferguson, the shameful 1896 decision that upheld racial segregation of state public facilities under the reprehensible “separate but equal” doctrine that the 1952 Brown v. Board of Education ruling finally overturned.
How do we identify this kind of independence in advance? A nominee’s record can give some indication, as can assessments from those who know them well, particularly those who don’t usually agree with them. If the nominee is a sitting judge, senators might learn something from instances, if there are any, where they upheld a law fiercely opposed by their usual court allies, as the current conservative chief justice famously did by twice casting the deciding vote upholding Obamacare.
In coming months and years, our democratic institutions and political and constitutional norms will be severely tested. The Supreme Court is supposed to serve as a bulwark against the worst executive and other abuses – a concern the Senate’s confirmation process should elevate.
Dorothy Samuels is a senior fellow and Alicia Bannon is senior counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.