The determination of U.S. Senate Republicans to use procedural gimmicks to entrench conservatives in the judiciary has, unfortunately, begun to leave the American people questioning the legitimacy of the courts, especially the Supreme Court.
The GOP Senators’ abuse of their power over judicial appointments has become so ordinary that their behavior has begun to create the perception that judicial decisions are now made by ideology, which is eroding trust in the Courts. Why?
Well, free and fair elections provide stability to our democratic process. However, what is perhaps more important to our long-term stability is what happens after elections. The defeated voters in any election cycle must feel that those now in authority are legitimate and that they will avoid giving themselves an unfair advantage in future elections, nor use the apolitical bureaucracy to harass opponents or punish critics.
Max Weber, a 19th-century German sociologist, gave a series of lectures, Politics as a Vocation, in 1919, in which he argued (paraphrased) that if the democratic state is to exist, the defeated must obey the authority of those who won the free and just election. His argument was that for the state to function and be regarded as just, the obedience of the governed must be freely given.
Weber’s ideas were so influential that political scientists often refer to the modern democratic state as “Weberian.” The Supreme Court as the separate and independent judicial arm of the government must rely heavily on this concept, because after it issues a controversial ruling both the winners and losers in both parties, at all levels of government, must willingly implement its rulings without coercion from other government institutions, even when they sharply disagree with that ruling. Our democracy will eventually fall apart if the national government must constantly use force to carry out a Supreme Court decision.
Yet, almost every recent landmark Supreme Court decision is made on a party-line 5 to 4 vote and it is becoming less and less possible for the public to distinguish between the Supreme Court as a deliberative body or as simply an extension of conservative ideology.
The justices are coming to be seen not as impartial, deliberative, legal interpreters of the constitution but rather as political agents, whose rulings are mostly detached from legal principles but whose decisions are ideological in nature. This is because recent decisions by Sen. Mitch McConnell, the Senate’s majority leader, have forced the American people to revise their opinion of the Supreme Court and to no longer view it as impartial.
Even prior to Mitch McConnell’s rabidly partisan behavior toward Judge Merrick Garland, the elevation of Neil Gorsuch (and the possible elevation of Brett Kavanaugh), the Roberts court has intervened time and again to thwart popular majorities on issues like campaign finance reform and, with the potential addition of Kavanaugh, will now be poised to overturn Rowe vs. Wade. The Supreme Court is now being positioned for a prolonged period to serve as the handmaiden of conservative ideology.
The Republicans could hardly have picked a worse time to engage in the kind of naked political aggression demonstrated by Mc- Connell in the nomination of Judge Kavanaugh to the Supreme Court. If the Republicans were led by a serious person who could at least pretend to care about the people he served, they would probably have a good chance of extending their domination for another 20 years. But with a chaotic president at the helm and an unprincipled Senate majority leader, Republicans may very well turn total power over to Democrats between now and January 2021.
I can only hope that if the Democrats do regain power they will not repeat the naked judicial power plays of McConnell but, unfortunately, I suspect they will.
J.T. Oney, of Mayking, served more than 40 years with the Department of Defense in various military, intelligence, and security organizations. He retired from DoD in 2000 and taught for 11 years at a small college in Virginia. Now retired, he is an Adjunct Professor at Southeast Kentucky Community and Technical College.