Supreme Court Justice Nomination: Is it Judicial or Political?

"Anything you seeing the left doing, the right can do," once said Senator Lindsey Graham, the current South Carolina Republican who has been a member of Judiciary Committee.¹ Ever since the failed nomination of Robert Bork, the nomination process has found itself amidst of political, not necessarily legal, struggles fearing for the impacts of the nominee in the bench now and for the decades to come. Bork was not the sole victim of castigations during the process; even for Reagan, some may remember Douglas Ginsburg, and for Bush, Harriet Miers.

The necessity for executive branch to predict the behaviors of the "Men in Black," as called in the cover of Men in Black: How the Supreme Court Is Destroying America by Mark R. Levin, is not a novel goal. Journalists and media (and perhaps, some in legal academia) find themselves often in the words of Abraham Lincoln except this time, the spotlight is not on slavery or Gettysburg Address. He once spoke said during making a nomination, "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore, we must take a man whose opinions are known."²

Yet, it seems implausible to call the nomination and hearing just as a "judicial" process. It is, in several ways, a misnomer. If it was truly a "judicial" matter, then why was all media focused on Justice O'Connor as the first woman to be in the bench? Not too many people commented on her prominent education degree, which happened to be same as the former Chief Justice Rehnquist. The focus was her gender, underscoring the possible end to male-dominated supremacy that seemed to preside in the realm of justices.

The gender and civil rights persist in the nomination process, but they too are not completely exonerated from political clouds. In his speech to denounce Bork, the former Senator Ted Kennedy spoke, "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy."³ Are they truly "judicial" remarks? Or are they the voices of interest groups and organizations?

Answering "yes" or "no" to those questions would be like calling every Republican as neoconservative and every Democrat as socialist. This is because if the process solely relied on political reason, then Miers should not have received as much criticisms as she did. Sure, she was a personal favorite of President George W. Bush. But she had a gender factor as well, but she withdrew her nomination after receiving bitter attacks from both sides of the party.

It's like attacking a bad football player who found himself in a scandal with his previous team. Scandals won't matter to sports writers unless this player is a skilled and famous one that would cause some damages to the team. Scandal without skills is thus more of a tabloid than law review.

Works Cited
¹ Peter Baker, "Since Bork, a Long War Over the Court,"The New York Times 5 May 2010.
²Ibid.
³ "Robert Bork's America," Wikisource, Accessed July 3, 2010