If there were a vacancy in the Supreme Court before the 2020 election, should the Senate fill it?

Senate Majority Leader Mitch McConnell says yes. Democrats say such a decision is hypocritical, noting that McConnell and Senate Republicans blocked President Barack Obama’s nomination of Judge Merrick Garland in the lead up to the 2016 presidential election. McConnell’s allies say this time is different, because both the president and the Senate majority are from the same party.

No matter where you fall on the debate, it is evident that the politics of judicial confirmations have become corrosive to both our legislative and judicial institutions.

Judicial confirmations have been a priority for the Trump administration and the Republican-controlled Senate. This makes sense. On the campaign trail, Trump often spoke about his plan to nominate conservative judges and justices. After his election, Senate Republicans emphasized that confirming judges would be a top priority. And they have been successful: 100 federal judges have been confirmed during Trump’s first term, including two Supreme Court justices. But at what cost?

A Senate preoccupied by confirmations has little time for much else. Issues such as health care, immigration and a growing deficit are all concerns that senators talk about at home but abandon once back in Washington. The world’s greatest deliberative body should not shy from these complex challenges, or working with their colleagues in the House to achieve real world results.

Further, a Senate that minimizes its own legislative authority inadvertently cedes it to others. Throughout history, presidents have been eager to accept Congress’ delegations to write broad regulations, freely conduct foreign relations, and push back against substantive congressional oversight. With it, our notion of separation of powers has tilted off balance.

This misalignment has forced the courts to referee many of our political and policy battles. These battles often put judges in an untenable position. Rule one way and be accused of bias. Rule the other way and be held responsible for the disruption of sweeping executive policy.

Policy is the not job of courts. But when confirmations take priority over legislation and political battles move from Capitol Hill to the courthouse, it’s easy to see a troubling trajectory for our independent judiciary.

Image credit: Christopher Halloran