With Roe v. Wade as litmus test, expect judicial appointments to be political brawls

Published 3:37 pm Tuesday, September 29, 2020

Democrats and Republicans alike have strained at gnats to obscure the fact that decisions regarding the naming of a successor to the late Supreme Court Justice Ruth Bader Ginsburg is about anything more than more impactful than the future of the Roe v. Wade decision on abortion.

Regardless of who occupies the White House and regardless which party holds the Senate majority, the filling of Supreme Court vacancies and, for the most part, lower federal appellate court vacancies have been part and parcel to the same narrow political kabuki dance.

The media fixation over whether Justice Ginsburg expressed a “dying wish” that her replacement not be chosen until after the 2020 presidential election is concluded is not remotely relevant to the process at hand. That quaint notion frames the esteem in which many held Justice Ginsburg but has precious little to do with how the political sausage-making of federal judicial appointments.

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For a truly comprehensive and refreshingly bi-partisan examination of the federal judicial appointment process, 5th U.S. Circuit Court of Appeals Judge Leslie H. Southwick of Jackson wrote a thorough article entitled A Survivor’s Perspective: Federal Judicial Selection from George Bush to Donald Trump that was published June 19 in the Notre Dame Law Review, Volume 95, Issue 5, Article 3.

Mississippians will remember Southwick’s brutal sojourn in the federal judicial appointment grist mill. As the title of his law review article indicates, Judge Southwick ultimately survived the process and was confirmed to the Fifth Circuit bench in 2007 on a 10-9 vote when Democratic U.S. Sen. Dianne Feinstein of California broke with the Democratic majority controlling the Senate Judiciary Committee.

As with many Southern judicial nominees, Southwick — a moderate — was accused of racism. But as I wrote at the time, the 2007 opposition to Southwick was all about abortion: “There are 17 seats on the 5th Circuit, two of which are now vacant. Of the 15 occupied seats, 11 are held by Republican appointees of either President Ronald Reagan or the two Presidents Bush. In other words, the 5th Circuit is a conservative court. The pro-choice groups don’t want any other conservative judge confirmed to the 5th Circuit.”

Outside groups dominate the political public opinion wars in judicial confirmation fights. Southwick writes of their identities and influence in the law review article: “There are many groups, and I have not sought to discuss any but the most vocal and well known. A sampling of significant ones includes the Alliance for Justice, People for the American Way, American Constitution Society, and the NAACP who work closely with Democrats, and the Federalist Society, Heritage Foundation, Judicial Crisis Network, and Committee for Justice with Republicans.

“These and other groups are not all involved in the same way in the process, but they have an impact. The Federalist Society’s significance in the current administration, though, is unique. The American Bar Association’s privileged status as an evaluator of potential nominees has been the subject of much controversy. Republicans at times have tried to alter the ABA’s ability to screen individuals before nomination, but the evaluations still get done,” Southwick observed.

Appointment to the U.S. Supreme Court is a lifetime appointment, as the courageous Justice Ginsburg bravely demonstrated by carrying on her duties in the face of debilitating illness, advancing age, and other challenges. That is why, in an era of extreme political division, that neither Republicans nor Democrats would forego an opportunity to put a jurist of their liking on the nation’s highest court.

With a few exceptions, the high court usually split 5-4 to the conservative side of issues with Ginsburg on the bench. Replacing her with a Trump appointee will install a 6-3 conservative majority. That fact is why the Ginsburg replacement is so hotly contested and why Democratic objections on timing will almost certainly be ignored. And if Democrats held the advantage that the GOP has now, they would undoubtedly use it.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.