Take the Supreme Court Away From Presidents

Yesterday's Manila Times reported that President Gloria Arroyo is embroiled in controvery because she claims she is entitled to fill the opening to the Philippine High Court when one of the chief justices retires in mid-May. It doesn't seem like such a controversy to Americans, as nominating Justice to the Supreme Court is part of the presidents' responsibilities. But the retirement is coming so close to the Philippine national elections that opponents are accusing Arroyo of speeding up the process to put her person in the chair, in case she is not re-elected.
Imagine the hullabaloo in the United States if a Supreme Court Justice retired or died late October, just weeks before a presidential election and an unpopular or lameduck president tried ramming though a nominee for confirmation by a friendly Senate. Now imagine resulting problems if an outgoing president tried nominating a new Justice in the lameduck period between the elections and inauguration day. In America, it may not seem like such a likely scenario because we want to believe that the Supreme Court is above manipulation. (If you believe that, read about Franklin Roosevelt) But hypothetically, it could happen if an opposition party did not have the votes to filibuster and the controlling party played ball with the president.

For some time now, I have wondered whether it might be time to take the Supreme Court nominating process out of the hands of the presidency. I'm not sure how this could be done, except by a constitutional amendment, no doubt. And, no, I don't have a better idea for filling vacancies. Possibly a college of judges from each state's highest court could convene, something like electing a pope, but I digress. Finding a better solution is still a long way off. But I think it is time to open the debate about the possibilities.

It seems to me that the Supreme Court nomination process is the single largest reason this country has become irretrievably divided along party lines. Most Americans are open to debate about spending, taxes and government programs. We can each listen and appreciate what our neighbors have to say and we can even agree with their opposing views on bills before Congress.
But for about two-thirds of the electorate, scratch us and you will find lying just microns beneath the surface, a single issue that drives our vehement fears and opposition for voting for the other party. No matter how much we agree and can recognize the value of opposing positions on major issues, too many of us vote against the opposing party, moreso than we vote for our own particular candidate. Filling the Supreme Court with judges opposing our own unchangeable views on abortion and (to a lesser extent, gun rights) is unbearable to most of us.

It is possible that we have reached a point in our national politics where the opposing party dare not allow the president ANY win -- no matter how small or how early in the first term -- out of fear that it may lead to re-election. We take for granted that every president is likely to get the opportunity to fill at least one Supreme Court vacancy during a single term. But re-election means two, and possibly a third vacancy. That's too much to bear.

It occurs to me that most people live a happy life, somewhere two or three feet to the left or right of the political center. I know I do. I am typically a Democrat, and nothing embarrasses me more than what I call a knee-jerk liberal. One of my best friends is a fiscal conservative Republican, and nothing embarrasses him more than what he calls an ignorant creationist.

We want our politicians to serve near the middle of the political spectrum, too. That is, until it comes time for the old 'litmus' test for Supreme Court nominees. Suddenly, presidents from either party are forced to cater to their political base when nominaating a judge. Too often, the so-called base of both parties are so far out on the fringes that the majority of us don't want anything to do with them. But, we don't make good press, so we are tagged as undecideds or independents. Can you imagine the start of a joke, 'So, a political moderate walks into a bar...' I'm afraid we just don't sell newspapers.

So, I think it's time to start asking the question: Would you be less recalcitrant toward voting for the opposing party for president if the presidency no longer had the power of nominating candidates for Supreme Court openings? I suspect that the further you are out on the political fringe, the more you would oppose changing the current process. For the rest of us, who really only want to get along, is it really such a preposterous idea?

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