Chris Powell: Supreme Court is now almost entirely political


The contention over Supreme Court nominations like President Trump's of Judge Neil Gorsuch and President Obama's of Judge Merrick Garland has become so bitter because decades ago political liberals began using the court as a super-legislature and political conservatives could not resist the urge to follow suit. Maybe now the country can acknowledge at last that the Supreme Court is no longer a court at all -- that, as newspaper columnist Finley Peter Dunne's fictional Irish bartender, Martin J. Dooley, opined more than a century ago, "The Supreme Court follows the election returns."

If liberals are in power, the court somehow discovers that the Constitution requires enactment of every liberal nostrum, and if conservatives are in power, the court requires every important legal question to be answered favorably to conservatives. Connecticut's two U.S. senators, Richard Blumenthal and Chris Murphy, both liberal Democrats, confirmed as much this week upon Gorsuch's nomination, both expressing skepticism if not quite outright opposition, though not one question yet had been put to the nominee. It is enough that Gorsuch is considered a conservative.

"I want a mainstream judge, not an ideological partisan," Murphy said, and Blumenthal echoed him, as if they too aren’t ideological partisans and wouldn’t settle for a nominee who was a flaming liberal like themselves. Similarly, of course, when President Obama, a liberal Democrat, nominated liberal judges, conservative Republicans bleated about wanting "mainstream" nominees even as they would have been delighted with flaming conservative nominees.

Democratic senators are incensed about Gorsuch's nomination because they feel that the Republican majority in the Senate stole the current vacancy on the court from President Obama, refusing to consider Garland and maintaining the vacancy for most of a year until the presidential election changed control of the White House.

This was indeed crude politics, but appointments to high federal office are actually the Senate's own; the president's power is limited to nomination. Besides, Democratic senators this week played their own crude politics, refusing to attend committee meetings so they could stall some of the president’s Cabinet nominees. As for the legal and political issue believed to underlie the struggle over Gorsuch's nomination -- abortion -- it was the political left that wanted to constitutionalize it with the Supreme Court's decision in Roe v. Wade, in 1973, rather than leave the issue as a legislative prerogative of the states.

Since the country remains divided on abortion, no one should be surprised if the political reversal in Washington prompts attempts to de-constitutionalize the issue, especially since even some legal scholars who favor abortion rights acknowledge that the Roe decision was bad law.

But in the ideological hatefulness that dominates politics today, anyone who tries to make fair distinctions risks getting lynched by one side or the other.

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Not everything in Connecticut is crumbling. Bradley International Airport, in Windsor Locks, is steadily improving, and the other day Gov Dan. Malloy and the Connecticut Airport Authority announced that another airline will join Bradley's stable. The airline, Spirit, a no-frills carrier, will fly from Bradley to Orlando, Fla., once a day starting in April, and, starting in June, once a day to Fort Lauderdale, Fla. Spirit also will offer spring and summer flights from Bradley to Myrtle Beach, S.C., four days a week starting in April. The airport authority will extend $400,000 to the airline in promotional expenses and fee waivers, not a big bribe. Now all state government has to do is figure out how to get Spirit's Connecticut passengers to come back from down south.

Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.