Ready for a new round of ‘hire a judge?’

By Nathaniel Smith, Columnist, The Times

Every U.S. Supreme Court session offers fresh evidence of confirmation bias, the human tendency to process information in a way that conforms to our prior beliefs.

The Justices know why they are there: it’s not for their great legal minds, but because their legal backgrounds served as cover for getting them confirmed by the Senate.

Upton Sinclair said: “It is difficult to get a man to understand something when his salary depends on his not understanding it.”

Of confirmation hearings, one might say: “It is difficult to get a lawyer to say something when appointment to the Supreme Court depends on his or her not saying it.”

A combative Robert Bork told the truth in 1987 — that he looked forward to the “intellectual feast” of serving on the Court and airing his originalist philosophy, clearly to push the Court to the right as far and as fast as possible — and didn’t get confirmed. In an interesting twist, the successful nominee to that opening was the less outspoken Anthony Kennedy.

Current Chief Justice John Roberts in 2005 told Senators that “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind” and “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.” He was confirmed, and then proceeded to lead the Court in a rightward activist direction, where now it seems to be seeking out and even soliciting cases in order to impose its views on Congress and the country.

The next hearing, whether or not delayed until after the next election, a principle that Mitch McConnell was for until he was against it, will follow the familiar post-Bork pattern of nominee patter: “enforce the law… no preconceptions… yes yes, stare decisis, settled law, all that… oh, sorry, can’t talk about that issue as it might come before the court…” and then the rightward rush required of a Party of Trump nominee once confirmed.

It’s unfortunate that one must be cynical about the pinnacle of our legal system, but that’s where we are. You hire a lawyer to represent your interests in court, and a Supreme Court Justice is no exception. How else to explain the usual 5-4 split on the Court and its recent 5-4 overturning (in public employment) of the long-established right of unions to bill non-members for services rendered?

It all became clear in 2000, when the 5 Republican hires on the Court chose George Bush as president. Now, despite what the Chief Justice is said to want, the Court has become just another act in the political process.  And when Congress hits roadblocks, a president as wily as #45 knows that his people on the Court, who will never have to stand for reelection, can be counted on more than those volatile legislators.

However, those volatile Senators can at least be counted on for their own form of confirmation bias: the Republican majority will confirm whomever their president nominates, due of course to the nominee’s “great legal mind.”

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