Equal Justice Under Law: A Brief Rebuke To The Merrick Garland Obstructionism and Its Discontents

by Gabe Rusk

Oxford University

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Let’s be absolutely clear. The chickens that are coming home to roost in this primary season are not anomalous in form or scope. We cannot let these draconian tentacles strangle an institution that depends on the perception of procedural equality and fairness. If the obstructionists had legitimate legal grievances against Judge Garland that is a debate to be had. Question the nominee at a hearing. Pose hypotheticals. Pore over opinions, footnotes, and cases. Engage in the proper judicial dialectic. If unsatisfied then vote that candidate down.

That is not the debate that is being had. Instead we are sold a much more superficial snake oil. Obstructionism can be justified in the face of a greater injustice: The abdication of a Democratic voice. First, the duplicity behind this ‘election-year’ argument can be barely held together with its contemptuous and tenuous political stitches. A milieu of elected officials, even those on the judiciary committee itself, have admitted on record this tactic is either a farce or that they will never let the court “flip” ideologically on their watch. This affront dilutes an institution that protects rights and privileges so essential to our lives. This kind of “precedent” sets in motion events that cannot be undone. Study after study are beginning to accumulate that point to the direct effect of politicization on judges. There is now ample peer-reviewed evidence that these kind of coercive political forces lead to more judicial outcomes against criminal defendants, unequal sentencing against minorities, and even collusion.

An advertisement campaign was created against a potential nominee that criticized her former clients and lawful conduct as a defense attorney. Ads running in state supreme court elections criticized judges for ruling in favor of criminal defendants. These kind of political tactics make judges adverse to being perceived as “soft on crime.” This is not purely anecdotal. There is again peer reviewed evidence that judges approaching election are “more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty.”(1) These effects are magnified and compounded as you ascend the judicial ranks. A judge is neither member of species homo economicus nor an automaton. They are susceptible to nudges, pushes, and “Greenhouse effects” or “judicial drift.”(2) Even lawyers and judges who might aspire to the Supreme Court, sometimes called “Little Supremes,” might augment their behavior to remain politically palatable and confirmable.(3) We are obliged to minimize certain extraneous or political forces that should have no weight on the scales of justice.

Second, if this ‘election-year’ argument is truly to be believed then let us assume its truth and visit the ultimate reductio ad absurdum. In this instance I will let the noted constitutional law scholar Larry Tribe of Harvard Law School address the premise: “The argument that the American voters should have a voice in choosing the next nominee makes no sense at all in a situation where the nominee was indeed selected by the president whom the American voters chose to lead the country by a clear electoral majority and by a margin of millions of popular votes as recently as November 2012. Unless one accepts the implicit idea, grounded in what must candidly be called simple bigotry, that Barack Obama has never truly been the lawfully elected president of the United States, or the equally counter-constitutional idea that this president, unlike his predecessors, lacks the authority to perform the duties of that office for his full four-year term, one simply cannot countenance the notion that only those who cast their votes for the next president this Nov. 8 have a legitimate say in the matter.

That’s a position that has no logical endpoint: One might as well argue that, given the deliberately counter-majoritarian character of the Supreme Court as an institution, only a president elected by at least a two-thirds majority of the American people can legitimately appoint a new Supreme Court justice, or that a president cannot make a legitimate Supreme Court appointment except in the year immediately following his election as the nation’s chief executive. Those arguments would surely be rejected as ludicrous. The one the Senate’s leaders are making now is no less so.

Equally significant, I believe, is the enormous danger the Senate’s current posture poses to the vital American institution of an independent federal judiciary — one selected through the constitutionally specified process rather than in an ad hoc plebiscite gerrymandered to fit the political occasion.” (4)

The ‘election-year’ argument is neither persuasive nor consistent. There is no temporal moment in which a Supreme Court nominee loses its respective legitimacy. If the vacancy had occurred but two months prior in mid-December would the argument still hold water? No. Of course not. The people of the United States have made their democratic decision. Even polls suggest this is the case in the status quo. If this is a pure partisan tool to retain a particular dynamic on the court then the impacts are ample. If this is truly a principled argument then it is as weak as it is capricious and arbitrary. Rise above the fray.

Given that the nomination process could be particularly protracted and the fodder exceedingly partisan I promise to bear witness to what proceeds in the comings months until the nominee is confirmed or the nomination fails. Call your Senator. Mail Your Senator. Call Your Senator. Vote. The human stakes are too high to stand by idly.

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(1) https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases

The Brennan Report specifically cites amongst several peer-reviewed articles:

* Paul Brace & Brent D. Boyea, State Public Opinion, the Death Penalty, and the Practice of Electing Judges, 52 Am. J. Pol. Sci. 360, 370–71 (2008) (partisan contested, nonpartisan contested, and retention).

* Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When it Runs for Office?, 48 Am. J. Pol. Sci. 247, 258 (2004)

* Carlos Berdejó & Noam Yuchtman, Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing, 95 Rev. Econ. & Stat. 741, 755 (2013) (nonpartisan);

* Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. Pol. 421, 442 (1992) (partisan and nonpartisan contested);

* Melinda Gann Hall, Justices as Representatives: Elections and Judicial Politics in the American States, 23 Am. Pol. Q. 485, 497–98 (1995)

* Sanford C. Gordon & Gregory A. Huber, The Effect of Electoral Competitiveness on Incumbent Behavior, 2 Q. J. Pol. Sci. 107, 108 (2007) (“Employing data on felony convictions in Kansas and several econometric approaches, we demonstrate that judges in partisan competitive systems sentence significantly more punitively that those in retention systems.”).

(2) https://en.wikipedia.org/wiki/Greenhouse_effect_(judicial_drift)

(3) http://observer.com/2005/11/the-little-supremes/

(4) http://news.harvard.edu/gazette/story/2016/03/justice-in-moderation/