Skip to main content

Merely Qualified Need Not Apply

When did being a qualified eminent jurist of the president's choosing become insufficient to make it to the U.S. Supreme Court?

Republicans on the Senate judiciary committee took to the Sunday morning talk shows over the weekend to lay out the parameters for what type of judge they would confirm this summer to replace John Paul Stevens on the Supreme Court.

If the nominee is "clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," said Sen. Jeff Sessions.

Republicans, offered Sen. John Kyl, won't have to filibuster the nominee if the president will simply appoint "someone who is mainstream enough."

"Mainstream," it seems, is this year's litmus test, the latest in a long tradition of confirmation-season euphemisms that has the added bonus of meaning pretty much whatever you want it to. Do Sessions and Kyl mean "mainstream" relative to the American public? "Mainstream" relative to the sitting justices or the makeup of the court historically? Or "mainstream" relative to their own views within the Republican Party (which has an equally long tradition of arguing that the mainstream of American society is fundamentally conservative)?

"'From the mainstream' is an attempt by Senate Republicans to say extreme liberals are not acceptable, but more moderate liberals are," suggested University of Connecticut professor David Yalof, author of Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees. "The word 'mainstream' itself doesn't have any meaning in terms of the court. It's more an issue of the political mainstream."

THE IDEA LOBBYMiller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

Miller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

The linguistic two-step stems from the fact that no one will simply come out and say "extreme liberals are not acceptable, but more moderate liberals are" — precisely because we like to think the terms "liberal" and "conservative" don't apply as neatly to Supreme Court justices as they do to elected senators.

Instead, politicians bicker over "judicial temperament," "judicial activism" and "strict constructionists" versus "loose constructionists." Sonia Sotomayor was scrutinized for judicial activism last summer, when the term was taken to be synonymous with liberalism. (Her own euphemism du jour was "empathy.")

In the wake of the controversial Citizens United vs. Federal Election Commission decision earlier this year, however, "judicial activism" has been arguably re-appropriated by the right, making the slogan a less potent - and potentially hypocritical - weapon against Obama's second nominee. (Take conservative columnist George Will's word on this.)

Lacking "judicial temperament" was the original veiled accusation, according to University of Georgia political scientist John Anthony Maltese, who wrote The Selling of Supreme Court Nominees.

That phrase dates back to the 1800s. It carried the suggestion that a nominee was unfit for the court because he was too closely aligned with a given interest, or had already made up his mind on too many issues. For roughly just as long, both parties have also traded accusations of judicial activism.

The debate changed most dramatically, though, in the 20th century. Hearings weren't open to the public until after 1929. Nominees didn't begin to testify before the judiciary committee until 1925, and they didn't begin to do so regularly for another 30 years, following the 1954 Brown vs. Board of Education decision.

Then, in 1987, came Robert Bork. Previous candidates had, for the most part, been either qualified or unqualified. Many liberals conceded that Bork was the former, but they vowed to vote against him anyway, and they ultimately defeated his nomination.

"Reagan chose his nominees with what many perceived to be a litmus test, and if the president is nominating someone based on how he's going to vote, then the thinking was, 'Why can't the Senate do the same thing?'" Maltese said.

Ever since, politicians have been looking for ways to ferret out liberal and conservative judges — justices who will vote the way they want them to and justices who will not — without actually saying as much.

To state the obvious — "I'm not going to vote for you because of the way you're going to vote" — that "sort of pulls the mask off of the process," Maltese said. "It reinforces the idea that the court is in fact just another political branch."

"Why do we dance around the language that is really behind the scenes of what people are thinking and talking about?" Yalof asked.

There is a sense, he said, that the American public thinks of the Supreme Court differently than it thinks about the legislative or executive branch. When Scott Brown won a special election in January to replace Ted Kennedy, most of the analysis focused on the fact that Democrats had just lost their filibuster-proof 60th vote in the Senate.

"It was a very clear divide," Yalof said, "and if you asked both Obama and you asked Republicans, they all would have agreed that that divide had been crossed."

Vote-counting on the Supreme Court, though, that's just crass.