All of the views expressed in this post belong to the author and not to Political Union as an organization.
I don’t believe it is a stretch to say that faith in our democratic institutions is critically low. Examples include dissatisfaction with the electoral college, with the representation of smaller states in the Senate, and with the recently concluded battle over Judge Amy Coney Barrett’s nomination to the Supreme Court. The current Supreme Court situation is a microcosm of all of these issues. Barrett was nominated by a President who lost the popular vote, and she was confirmed following hearings overseen by a Senate that favors smaller, red-leaning states. This same GOP-led Senate broke with the “precedent” against election-year nominees invoked in the denial of Merrick Garland’s nomination under Barack Obama. Barrett was confirmed by a near-party line vote, in which only 52 of 100 Senators consented to a lifetime appointment for an unelected official.
Our national leaders’ hypocrisy is a key reason for the erosion of institutional trust. When every political issue features win-at-all-costs partisanship and selective enforcement of principles, it becomes difficult to understand why our system should remain in place, especially if you’re on the losing side of these battles. However, to restore these institutions, specifically the Supreme Court, we don’t need new, revolutionary measures to restructure the Court, the Senate, or the electoral college. Instead, we need to commit to bipartisan principles that shift power away from the Court and back to the Senate.
Political Union members who joined us for our Supreme Court debate will understand why Barrett’s nomination--and its fallout--is representative of all these issues. People want trust and legitimacy in the Supreme Court because, unlike Congress and the Executive, there is something almost mythical about the Court and its hypothetical distance from normal partisan politics. The innermost sanctum of our national judiciary is, and should be, above commonplace partisan battles. It’s not just that judicial philosophies can’t be thought of in normal political terms: can you imagine Mitch McConnell supporting the right to gay marriage, like John Roberts did in Obergefell, or President Trump supporting trans rights, like Neil Gorsuch did in Bostock? While debating whether Democrats should pack the Supreme Court if able to, multiple PU members raised the argument that court packing could be the final nail in the partisanization of the Court and the Senate, leading to a back and forth of expansion and contraction if parties are willing and in power.
The battle over ACB’s nomination is partially the result of imprudent, short-term partisan actions coming to a head in 2020. For Republicans, it started with the nomination of Robert Bork in 1987 by President Reagan, when then-Senator Ted Kennedy famously said that Bork’s America would be one of “back-alley abortions” and “segregated lunch counters.” It continued with the Clarence Thomas hearings, the filibustering of Miguel Estrada, and the Kavanaugh hearings. More recently, it’s been fueled by Harry Reid’s invocation of the filibuster-ending “nuclear option” in 2013, which ironically later helped Mitch McConnell confirm numerous conservative justices to lower courts, shaping the judicial landscape for years to come. For Democrats, this fight comes on the heels of the GOP’s rejection of Obama’s nomination of Merrick Garland to the Court, citing election-year precedent and the “Biden rule,” only to reverse course in 2020.
These examples are, at least partially, effects of the partisan, win-at-all-costs mentality that pervades modern politics. We have Senators inclined to focus on reelection and pandering to voters in even the most trivial of matters. You can’t deny there is a problem when a constitutionally elected President nominates a Supreme Court Justice to fill a vacant seat, and, after a week of proceedings used in part for grandstanding and appeals to voters, the entire minority party promptly boycotts the Committee’s vote on recommendation. This should be out of line for the appointment of an unelected official. It is an indication that we have allowed the Supreme Court to become too partisan and too influential.
Regarding partisanship, some short-term solutions for these “smaller” problems include, as outlined in a Wall Street Journal op-ed by Senator Ben Sasse, cutting the cameras from Senate hearings and proceedings. Instead of giving Senators the ability to give a speech to the American people during their questioning time, parliamentary structure should be focused on one thing: the proceedings at hand. The ACB hearings were prime examples of Senators, both Republicans and Democrats, using their time to exploit grand hypotheticals and try for easy political points. As long as there is media coverage, there will be showmanship and appeals to voters, but cutting cameras during proceedings is a start. A broader solution would be to lengthen congressional term limits to curb focus on reelection and hopefully sway attention toward actual legislation, instead of letting career politicians remain in power as long as they speak and act according to what the focus groups say.
There is also, however, a larger problem that threatens American democracy, and it concerns the power of the Court and Congress. Supreme Court seats are such a big deal because Congress has abdicated, for several reasons, large legislative responsibility to the Supreme Court, and the Court has stepped up into an activist role. Cases like Roe v. Wade and the recent Bostock ruling are examples in which the Court has used its activism to provide rights and protections to Americans unilaterally. Because of this, people look to SCOTUS instead of Congress as the source of high-priority “legislation.” The Supreme Court needs to be the remedy only for questions of legislative constitutionality. The Senate and the House need to take back their mantle and legislate for the people. The problem with cases like Roe is not necessarily the protections they ensure, but instead that they forced the court to make social decisions and institute protections that Congress and state legislatures should be guaranteeing. We should not let unelected officials hold this much sway over our public will. We should restructure our judicial focus, so that the Court will defer to Congress more than it does now.
We must allow the Senate to legislate and break up the partisan gridlock if we want to ensure faith in the three branches in the long run. One popular solution to this is to end the filibuster for legislation. Instead of allowing a minority party to stall majoritarian and popular legislation, the Senate should work for the party in power. While not necessarily doing away with partisan politics, this would hopefully allow a Senate majority to put through more popular legislation. In turn, hopefully this would mean less reliance on Supreme Court decisions for popular protections and policy provision.
In the last 30 years there have been countless imprudent, partisan political decisions that continue to have lasting ramifications on the judiciary. To reverse course, we must halt the win-at-all-costs mentality that pervades modern politics. Descent into mere tribalism will do more damage in the long term than its success will bring in the short term. We are at a critical juncture in our democracy, and we should focus on righting the ship and preserving legitimacy. If not, we risk sinking it all forever.
Will Secker is a Weinberg Sophomore studying Economics and History. He serves on the Political Union Events Team and is interested in US Foreign and Economic Policy.
Welcome to Political Union's blog! All opinions expressed are those of our writers, and not NU Political Union.