I owe an apology to former state Supreme Court Associate Justice Paul Anderson. When I got wind that Anderson gave a pep talk last month to the Polk County Democratic Party central committee in Des Moines, Iowa, I thought, “Geez, he’s turning into a Ruth Bader Ginsburg. He’s wading into partisan politics — a pond where no judge belongs.”
That was a flawed assumption, for at least two reasons.
One: Anderson is not a still-serving member of a high court, as U.S. Supreme Court Justice Ginsburg was, and is, as several times this summer she breached judicial norms by disclosing her disdain for Donald Trump. Minnesota’s hard-and-fast age-70 retirement rule ended Anderson’s 21 years as an appellate judge in 2013. He’s now Citizen Anderson, free to speak his mind.
Two: Anderson’s pitch in Polk County — judging from the text of his July 20 speech, which he eagerly shared — was not a rallying cry for Iowa Democrats to defeat U.S. Sen. Charles Grassley, the six-term dean of the Iowa congressional delegation and chair of the Senate Judiciary Committee.
Rather, it was a plea to Grassley’s political opponents to keep pressing the senior senator to take up President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. Not after the election. Now.
The Senate’s refusal to do its part to fill a U.S. Supreme Court seat left vacant by the Feb. 13 death of Justice Antonin Scalia has become old news in this politically raucous summer, to Anderson’s regret. If Grassley and his Republican-majority cohorts continue to stonewall — even if only until after the Nov. 8 presidential election — they will do lasting damage, Anderson says.
Their delay is “at best a dereliction of their sworn duty to support the Constitution and to make government work for the benefit of the people,” he said in Iowa. “At worst, it is unpatriotic.”
Anderson, a Republican before Gov. Arne Carlson made him a judge in 1992, hasn’t thrown in with the Democrats, he explained. Rather, he observed that as a judge who no longer hears cases (unlike many judicial retirees), he’s well-positioned to register a protest to the Senate’s non-response to Garland’s nomination. He’s become a one-man speaker’s bureau at his own expense, in hopes of sounding an alarm about what he sees as the disastrous consequences of Senate GOP inaction.
What’s so disastrous about a few 4-4 SCOTUS rulings? “They’re binding for that case only. The law remains undecided,” the jurist patiently explained to the journalist. “That creates inefficiency. A 4-4 ruling is bound to be relitigated, at considerable cost and expense. The system will be missing something it is designed to have — well-defined law, set by at least five justices.”
But those are only the obvious and narrow effects of allowing a nine-member court to function as a panel of eight. More worrisome are the precedents being set in politics and governance.
“The Senate is basically trying to rewrite the Constitution by inaction. They want to abbreviate the president’s term by nearly a full year,” he said. If Republicans get a political pass for doing that, both parties will be emboldened to ignore more presidential actions when government is divided.
Grassley and Co. have argued that the new president in 2017 should be the one to fill the court vacancy, not lame-duck Obama. That argument has raised the Supreme Court’s composition to top-tier status in the presidential campaign. A national poll last month released by Hart Research Associates found that 50 percent of U.S. voters say the court is a “very important” consideration in their vote for president. That’s up 20 percentage points since 2012, and it’s a concern shared evenly by Democrats and Republicans.
Those poll results suggest Americans increasingly expect high-court appointees to be partisans — and “that’s a distortion of our system,” Anderson says. Americans ought to be able to count on judges to be politically impartial.
Many Washington observers expect Senate Republicans to reverse themselves and confirm Garland before the end of Obama’s term if Democrat Hillary Clinton is elected president. To Anderson, that would not be a satisfactory outcome. Instead of being seen as the “superbly qualified jurist that he is,” Anderson said, Garland then will be seen as the tool of a Republican move to deny a new president an appointment that the same Republicans originally claimed was rightfully the new president’s to make.
“It would just compound the wrong that they are doing. What kind of faith will people have in their elected officials when they are so blatantly hypocritical?” Anderson said. In that situation, Garland should withdraw his nomination “for the sake of the institution and the good of the country.”
Anderson fears that the Senate’s refusal to act on the Garland appointment puts the branch of government he loves best at increased risk of acquiring the dysfunction and public disrespect that has afflicted Congress. What will then follow, he predicted, is more anger and cynicism in an electorate increasingly susceptible to demagoguery.
There’s considerable irony in Anderson’s thinking that the best way to keep politics away from the judiciary in the long term is to amp up the conversation about the Garland appointment in the short term, in Iowa and other states where Republican senators are on the ballot.
But politics is supposed to be democracy’s means to all manner of desirable ends. It goes wrong when it becomes an end in itself.
Lori Sturdevant, an editorial writer and columnist, is at firstname.lastname@example.org.