Judge Merrick Garland, who President Obama has nominated to be the 113th justice of the Supreme Court, has yet to take a firm stance on the court’s Citizens United v. Federal Election Commission ruling — the 2010 decision that opened the floodgates for corporations and unions to spend unlimited amounts of money to influence elections. The Senate should hold hearings and ask Garland to clarify his position on campaign finance law.
If Garland does not clearly renounce the court’s ruling in Citizens United and related cases, the Senate should reject his nomination. Now is not the time for fainthearted politics of pragmatism. If Senate Majority Leader Mitch McConnell chooses to block an anti-Citizens United nominee, then the November 2016 elections will rightfully be a referendum on the Roberts court’s stance on campaign finance.
As a result of Citizens United — one of the most controversial examples of judicial overreach in the modern United States — true power no longer solely resides within our three branches of government, but within a narrow cabal of political campaign donors that decides who can run for office as a viable candidate, who will win elections and what issues will be put forth for debate. Any individual donor doesn’t always see his or her favorite candidate win: Sometimes they lose to other big money candidates. But with the candidate who raises the most money winning nine out of 10 congressional campaigns, big money donors have collectively prevented candidates lacking access to wealth from governing the country.
Any move by President Obama, any nominee or any senator that seeks to dodge the issue of Citizens United would do a fundamental disservice to our country by preventing voters from ultimately weighing in on the issue. Recent polls show that nearly 80 percent of people in the United States disapprove of the ruling and want to see it overturned. In a representative democracy, the will of the people should be reflected in our political institutions.
Both Hillary Clinton and Bernie Sanders have made clear that they would apply a litmus test that would ensure that any potential Supreme Court nominee would seek opportunities to overturn Supreme Court doctrine that has struck down limits on big money in politics. But President Obama has made no such pledge. Rather, his desire to secure his legacy may lead him to choose a “consensus” nominee for the court with no track record whatsoever on campaign finance reform issues. While this might make it harder for Republicans to deny an up or down vote on his nominee, such a move prevents the executive and legislative branches from using the confirmation process as one of the few tools they have to check and balance a Supreme Court that has gone off the rails.
Judicial nominees are coached to give vague answers during confirmation hearings, in part to promote an image of impartiality of Supreme Court justices. But this pretense no longer holds water in an era in which justices now routinely act like politicians in robes. There was a time when the Supreme Court declined to rule on “political” issues, leaving them for the other branches of government and ultimately the voters themselves to sort out. In the wake of Bush v. Gore, Citizens United and rulings upholding partisan voter suppression and redistricting laws, the Supreme Court can no longer pretend to be an impartial body. If we are going to get another partisan on the bench, voters deserve to know their true colors. If Garland or any Obama nominee refuses to candidly disclose their views of past Supreme Court rulings, Citizens United chief among them, the Senate should reject them.
While Justice Antonin Scalia was confirmed by a 98-0 vote, the Supreme Court’s political behavior has led to a politicized confirmation process, with Democrats routinely voting against nominees of Republican presidents and vice versa. So be it. While it would be unacceptable for the Senate to refuse to hold a vote on any of President Obama’s nominees, individual senators are free to use their political judgments in deciding whether to confirm them. These individual Senate votes than provide a record for voters to approve or reject in the upcoming November elections.
If Republican senators vote down a judicial nominee who has candidly answered questions that demonstrate opposition to the flawed reasoning of the Citizens United ruling, voters will have a chance to vote those senators out of office.
Rather than pretending that Supreme Court justices are not, or should not be, political, we should openly acknowledge that they are. As Thomas Jefferson noted, “Our judges are as honest as other men, and not more so. They have with others the same passions for the party, for power and the privilege of the [corporations.]” The appropriate response is a transparently political confirmation process that allows the voters the final chance to weigh in through the utmost of political processes: voting.