Of the three branches of government the Supreme Court is the least powerful and most vulnerable. It, like the rest of the judiciary, is entirely dependent on the Congress for its budget and for the filling of judicial vacancies. Perhaps most importantly it has no means of enforcing its decisions. Rather, it is almost entirely dependent on the belief that its decisions are legitimate and worthy of being obeyed. The Court is supposed to be different from Congress and the Presidency both of which are overtly political institutions subject to the push and pull of power politics and political calculation. Perhaps for that reason, Congress’s approval rating is at an all time low. The push and pull of politics has yield gridlock and partisanship. The public has lost its faith in the Congress. Some have lost their faith in the Presidency. What would happen if the Supreme Court came to be considered as nothing more than an extension of the Congress? Might the Court lose its capacity to earn the public’s respect and willingness to voluntarily comply with it decisions?
I fear that the Republicans’ refusal to hold hearings on the Merrick Garland nomination is another step toward creating the belief that the Court is nothing but an extension of the partisan, gridlocked Congress. Consider, for example, Sen. Charles Grassley’s searing and unwarranted criticism of the Court as reported by MSNBC. Sen. Grassley claims that the Court is purely political and therefore must be brought under the absolute control of Congress, which is why there must be no hearings on the Garland nomination as if Judge Garland were some kind of liberal equivalent of Justice Scalia. The Republicans are in essence arguing that the next Supreme Court nominee must be nominated by a Republican president. They have no faith in the Constitutional process by which the President nominates and the Senate gives its advice and consent. If that process were allowed to unfold as intended, the Senate would almost certainly confirm Judge Garland for he is no radical judge. The Senate has already confirmed him once and by all accounts he is a moderate, careful, humble jurist. The Republicans only have faith in their own power to control the Court. Their attitude and the way they are exercising their power can only lead to the conclusion that the Court is not a court of law but rather a pure extension of partisan political power. Imagine what would happen if the Supreme Court were viewed as nothing more than an annex of Congress. The public’s acceptance of Court decisions would almost surely suffer as would the notion that we are a nation of laws rather than of men and women.
One can only hope that the Republican’s will reverse course, hold hearings on the Garland nomination and confirm him to be the next Justice of the Supreme Court.