In interpreting a constitution, justice is best carried out
when the justices are non-partisan rather than politically ideological. To be
sure, every living and breathing human being has a political ideology, even if
implicitly. Even so, the institutional process by which justices are chosen can
mitigate this point by being oriented to non-partisan candidates. In other
words, a system can be designed so as to minimize the likelihood that a
partisan of one political party or another will sit on a constitutional court. The
confirmation of Neil Gorsuch to sit on the U.S. Supreme Court can provide some
insights in this regard.
The U.S. Senate Judiciary Committee meeting on Gorsuch's nomination on April 3, 2017. (NYT)
With the U.S. Senate’s Judiciary Committee having voted 11-9
along party lines to advance Gorsuch’s nomination to the full Senate, Sen.
Chris Coons of Delaware voiced his intent to join the planned filibuster
against the nomination. He said he wanted to “ensure the process to fill the
next vacancy on the court is not a narrowly partisan process, but rather an
opportunity of both parties to weigh in and support from members of both
parties.”[1]
A narrowly partisan process could be expected to produce a narrowly partisan
justice, or at the very least to enable such a nominee to get through. In
contrast, making support from a sizable number of senators from the minority
party a requirement would make such a nomination unlikely. Instead, nominees
whose views do not mirror those of one party would easily manage through the
requirement. Were such nominees justices on the Court, its own decisions would
be less likely to reflect familiar ideological differences wherein there are “conservative”
and “liberal” justices. Instead, their more salient differences would be on
judicial philosophy, which does not line up on the more political fault-lines
such as “liberal” and “conservative.”
In the U.S. Senate, the filibuster requirement of 60 votes
(in the 100 vote chamber) would ensure that a successful nominee gets at least
some support from the minority party. In terms familiar in the E.U., the
requirement of a qualified-majority vote—a “supermajority”—ensures that a
choice is more widely accepted than would be the case on a more narrowly
partisan basis. Ideally, both parties should confer with the U.S. President so
he or she nominates someone who is acceptable to both parties. Then it would be
very improbably that the justices sitting on the U.S. Supreme Court would be
ideologically partisan (i.e., identify themselves as liberal or conservative).
To a good jurisprud, those labels should mean little, especially in the legal
context of interpreting law. My point is that a system or process of selection
can be designed such that such judges tend to be the ones who get through
unscathed.
1. “Senate
Dems Reach Filibuster Threshold on Gorsuch Setting Up ‘Nuclear Option’ Change,”
CNN.com (accessed April 3, 2017.
