When the American Bar Association recently rated an Omaha attorney nominated for federal appellate court position as “not qualified” for the position, partisanship in judicial nominations hit close to home.
Though this trend is nothing new; regrettably, it appears to have picked up steam in recent years.
The judiciary is a coequal branch of government to the legislative and executive branches, both of which are elected and partisan by nature. The series of checks and balances are supposed to keep one from exceeding the authority of the other two, but the troubling spike in politics surrounding judicial appointments is chipping away at the neutrality essential to the American legal system.
To be clear, neither Republicans nor Democrats can claim the moral high ground here. This isn’t a case of false equivalency; both have engaged in this practice when it suited them and decried it when the tables were turned.
Most recently, Republicans were outraged at the ABA’s unanimous “not qualified” rating for Steve Grasz, an Omaha attorney who previously served as Nebraska’s chief deputy attorney general for 12 years, over concerns about some of his conservative viewpoints and professional demeanor.
Sen. Deb Fischer, speaking before the Senate Judiciary Committee, called the group’s evaluation “biased, baseless (and) filled with innuendo.” Sen. Ben Sasse also blasted the ABA, calling it “sad that the ABA would contort their ratings process to try to tarnish Steve's professional reputation in order to drive a political agenda."
Yet that same Senate Judiciary Committee intentionally left vacant a U.S. Supreme Court seat after the death of Antonin Scalia last February. Then-President Barack Obama nominated Merrick Garland, who never even received a hearing, as the Republicans in the majority used the completely bunk argument of letting voters decide – even though they’d already elected a Senate and president for that purpose.
Last year’s campaign trail was filled with promises for litmus tests, too. Hillary Clinton promised to fill that Supreme Court vacancy with a nominee who was opposed to the Citizens United ruling, which allowed unlimited spending on political campaigns. In doing so, she vowed to find someone who’d help reverse the previous 5-4 ruling – inserting the executive branch to undo the judicial branch’s work.
The last thing this country needs is a judicial branch dependent on the political whims of whichever party holds a majority at a given time. The qualifications should be on knowledge of the Constitution and case law, not whether a nominee’s jurisprudence matches or advances some agenda.