September 16, 2022 | OPINION | By Zoraiz Zafar | Illustration by Kira Schulist
As political polarization and divisiveness increase in the United States, actions that were formerly seen as merit-based have become politicized. Arguably, the process of the appointment of federal judges and U.S. Supreme Court justices, in which individuals are first nominated by the president and then confirmed or rejected by the U.S. Senate, has been most impacted by this phenomenon.
Amy Coney Barett and Merrick Garland did not have much in common as nominees for the Supreme Court bench, except for the fact that both of them were nominated in times of polarized and contentious presidential campaigns. This was a key factor that made both nominations controversial. Scrutiny was placed on the validity of the nomination rather than the credentials and legal opinions of the nominees.
And the consequences of not focusing the debate on the credentials of a nominee are harrowingly apparent in the case of Justice Barett. Nominated by President Donald Trump in 2020, a mere month before election day, then-Judge Barett’s ideologically extreme opinions on matters regarding abortion, gay marriage, and the separation of church and state were barely brought up relative to the criticism placed on the timing of the nomination.
Two years after her confirmation, the Supreme Court has overturned the landmark Roe v. Wade decision, rolled back the Environmental Protection Agency’s mandate to enact environmental regulations, and is expected to overturn Affirmative Action in the coming months. And in all these rulings, Justice Barett’s vote has been critical, if not decisive.
If more of an emphasis had been placed on the social implications of confirming Justice Barett back in 2020, I strongly believe that enough moderate Republican senators might have voted ‘No’ on her confirmation to the bench. As a result, the unrepresentative conservative supermajority that currently occupies the bench could have been avoided.
So, what’s the fix? In my opinion, legislation that sets in stone a point during a presidential election year after which no judicial appointments can be made will go a long way towards solving this issue. Ideally, this date should be sometime in the early summer before the conventions and after the conclusion of both Democratic and Republican presidential primaries.
Something of a similar nature has previously been thrown around in the halls of Congress, although informally. Proposed in 1992 by then-Senator Joe Biden, the ‘Biden rule’ suggests that, should a vacancy occur in an election year, the president should either hold off on nominating an individual until after the election or put forward a moderate nominee who would be acceptable to the non-incumbent party.
However, when President Obama nominated Merrick Garland in 2016, who was universally considered to be a moderate nominee, Republicans openly violated the ‘Biden rule’, thereby ending any hopes of making it Senate policy.
Multiple disputes and controversies could be avoided if Congress were to pass such legislation. First, the focus of all judicial nominations, including federal judges, would be solely on the credentials of the nominees rather than the validity or morality of the nomination itself.
Furthermore, this solution would help to avoid a scenario where a ‘lame-duck’ president and an outgoing Congress are seeking to fill a Supreme Court vacancy, which would undoubtedly only increase partisan vitriol in and around Washington D.C. In conclusion, a solution to the highly contentious issue of election year appointments is the need of the hour, and I believe that the passage of effective legislation is the optimal way to move forward.