The Supreme Court is fundamentally unlike other courts: It selects its cases, unlike any other federal courts, and operates unconstrained by any supervising body. It is, as Judge Richard Posner, has said, “a political court.”
There is, though, one sense in which the court has rarely if ever been “political.” President Trump has refused to commit to a peaceful transition of power should he lose. He has expressed his desire to install a justice in expectation of election-related disputes being resolved by the court — and it is plain that he expects that justice to rule on his behalf, even if he has not said so explicitly. Senator Lindsey Graham has also talked of accepting a Democratic victory if (and perhaps only if) the court “decides” as much — omitting any mention of how Americans actually vote. This comment suggests a desire to replace the democratic process with a judicial one, controlled by a court whose partisan orientation runs against present estimates of the national popular orientation. Even more worryingly, Attorney General William Barr has allowed the Justice Department to be conscripted into the president’s spurious campaign to delegitimize vote-by-mail through the specter of litigation. These comments and actions evince the clear and present danger that the Supreme Court will be leaned on in November as an instrument to deliver a specific outcome in the presidential election.
Under these extraordinary circumstances, no justice should be confirmed unless she commits, under oath, to recuse herself from election-related cases, and to refrain from voting to issue any order or grant review in such a case. This is desirable not least because it reduces the temptation to use the courts to undermine a democratic outcome. (There would be a greater chance of a 4-4 split, although this is far from likely anyway.)
Such a commitment would be unwarranted under normal circumstances, and I do not think it should be asked of any and all candidates. But we are not in normal circumstances. A failure to make that commitment will cast direct light on the candidate’s integrity, and their commitment to our constitutional system of democratic self-rule. In contrast, the making of such a commitment, under oath, would be an affirmation of the nonpartisan character of the Supreme Court. At a time when our most important democratic institutions, including the courts and the Justice Department, are in grave danger of being suborned to anti-democratic ends, silence on this point should, however, be disqualifying — whatever the other merits of a nominee might be.
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