Dissing the Court Bears a Poisonous Fruit of Distrust

      Alex Kozinski had served as chief judge of the U.S. Court of Claims in Washington for two years in 1984 when he decided he wanted a change of jobs and locations. So he wrote to his friend, White House counsel Fred Fielding, who had initially recommended Kozinski to President Ronald Reagan for the judgeship, to request appointment to the Ninth U.S. Circuit Court of Appeals out in California.
      Kozinski had personal reasons for moving to California: his family and his wife’s both lived there. And he thought he had earned favorable consideration, in his words, by “leading the Claims Court through a very difficult time in its history, without dissension or controversy.” But to cinch the argument, Kozinski emphasized what he described as the Nitnth Circuit’s “need of judges with a conservative judicial philosophy.” If appointed, Kozinski vowed, “I promise to do my very best there so that you and the President can be proud of me.”
      Kozinski’s letter, which recently surfaced as part of the Reagan White House archives, raises eyebrows three decades later for its matter-of-fact promise from a sitting judge to serve the president's agenda if elevated to a higher court. But it is hardly surprising to learn that Reagan had an agenda in his judicial appointments, just like two other notable Republican presidents: Richard M. Nixon before him and George W. Bush after.
      The fruits of the more than 40 years of politicization of the courts by the Republican Party may now be reflected in a new poll that shows confidence in the U.S. Supreme Court at an historic low level. The New York Times/CBS News poll, published last week (June 8), found that only 44 percent of those responding approved of the way the Supreme Court is doing its job. As the Times account noted, approval of the court was as high as 66 percent in the 1980s and remained above 50 percent even after the controversial Bush v. Gore decision in 2000.
      More disturbingly, more than three-fourths of those polled – 76 percent – say the justices “sometime let personal or political views influence their decisions.” And a majority — 55 percent — say that the justices’ decision later this month on President Obama’s health care law will be “mainly based on personal or political views,” not on legal analysis (13 percent).
      The court’s sagging approval rating comes at a time when Congress’s numbers are dismally low — in the 10 percent range. Presidential approval ratings have been increasingly volatile for the past two decades. Americans are in a sour mood, politically. So it is perhaps not surprising that the court would also feel the sting of the public’s ingratitude.
      Still, as University of Southern California political scientist Lee Epstein told the Times, the poll calls into question the conventional wisdom that the court can stay somehow above the transient winds of public opinion even as it rules on contentious issues of the day. If the court now finds itself in the political thicket, is there blame to be laid?
      One is tempted to lay the blame on both major political parties. After all, President Obama and leading Democratic senators have laid into the Roberts Court for the past three years for what they see as an anti-democratic activism wielded often in behalf of corporate interests. But a longer historical perspective makes clear that it is the Republican Party that has politicized the Supreme Court, deliberately and wantonly, with little if any regard for the potential damage to the court’s long-term ability to maintain public confidence.
      Nixon started the rhetorical attacks on the court that are now standard fare from Republican politicians and that morphed into the more strident attacks on the court’s legitimacy from Tea Party types. Nixon also started the practice of picking justices based more on conservative ideology than judicial temperament.
      Among the 15 Supreme Court nominations by GOP presidents starting with Nixon, all but three were markedly more conservative than the justices they were to replace. The three exceptions resulted from unique circumstances: President Gerald Ford picked John Paul Stevens to try to calm the post-Watergate climate; Reagan nominated Anthony M. Kennedy only after the failed nomination of conservative ideologue Robert Bork; and President George H.W. Bush picked David H. Souter out of an instinct for bipartisanship.
      Bork was one of three failed nominations; Nixon’s two rejected nominees — Clement Haynesworth and G. Harrold Carswell — insulted the court’s dignity. Some of the successful nominations also lacked respect for the court’s stature. Reagan’s elevation of William H. Rehnquist to be chief justice and selection of Antonin Scalia for Rehnquist’s seat amounted to a conservative poke-in-the-eye to bipartisanship. The first Bush’s description of the inexperienced Clarence Thomas as “the best qualified” candidate for the court was laughable.
      Today, the court is for the first time in history divided along an ideological fault line that corresponds exactly to the justices’ partisan background: five Republican-appointed conservatives, four Democratic-appointed liberals. A public now conditioned to the politicization of Supreme Court appointments by GOP presidents may naturally think that it is all politics — not “all law,” as Sonia Sotomayor promised in her confirmation hearing. The court’s lowered esteem is a burden that the court carries as it confronts issues that are hard enough legally without the added challenge of rendering a decision that can win respect in a politically polarized era.