Composition of Court Key Topic of Common Hour Forum

HARTFORD, Conn. – Both the ratification process of justices and the composition of the U.S. Supreme Court have grown increasingly partisan in recent years, according to a panel of three Trinity professors who spoke at a Common Hour forum on Thursday, which also happened to be Constitution Day.

Constitution Day is held on September 17 of every year, pursuant to a law enacted by Congress that decrees that any educational institution that receives federal funding must hold an educational program pertaining to the U.S. Constitution.

Kevin McMahon, John R. Reitemeyer Associate Professor and Chair of the Political Science Department, kicked off the discussion with his theory that the defining moment in the politicization of the high court came in 1987 when nominee Robert Bork was demonized and subsequently rejected by the Democrat-controlled Senate. Bork, who was nominated by then-President George Bush, was seen as an ultra-conservative who would swing the court in a direction that was unacceptable to Democrats. The opposition to Bork by led by U.S. Sen. Edward Kennedy, who recently died.

In the pre-Bork era, McMahon explained, it was not uncommon for Supreme Court justices to be ratified by unanimous votes. Since 1987, the process has become much more partisan; often the opposition party will vote as a bloc against the nominee. Even John Roberts, who was nominated by former President George W. Bush and was widely seen as qualified to sit on the bench, drew the opposition of 22 Democrats. Today, Roberts is chief justice.

One of the reasons for the growing partisanship is that both Democrats and Republicans are beholden to special interest groups who, in turn, pressure the senators to vote a certain way. The interest groups contribute large sums of money to the senators’ campaigns and often hold sway.

McMahon also noted that the high court has changed in other ways: Less attention is paid to achieving diversity among justices (for example, six of the nine justices are Catholic and two are Jewish), and there isn’t the geographic balance that the court once was known for. Also, McMahon said, the court is composed of predominantly Ivy League-trained justices, with four graduating from Harvard Law School, three from Yale and one from Columbia. The ninth member attended Northwestern University Law School.

Adrienne Fulco, associate professor of the Legal and Policy Studies Program, focused on the court’s handling of cases involving criminal law, and particularly on how the court has, in recent years, moved in the direction of narrowing the rights of the accused.

Ironically, although that was one of the goals of the court led by the late Chief Justice William Rehnquist, the court actually upheld, in a 5-4 vote, the Miranda Rights law, which allows the accused to right to remain silent. The Rehnquist court was also deeply divided over the death penalty, ruling, for example, that people with mental retardation cannot be executed.

Fulco noted that several cases involving critical aspects of criminal law – including the Miranda Rights and the death penalty -- will be argued before the court in coming months, each with the potential to overturn longstanding precedents.

Edward Cabot, adjunct professor of public policy and a former national chairman of Common Cause, spoke about a critically important campaign finance law that was recently heard by the court. It involves a movie that was made about Hillary Rodham Clinton and which was independently financed by a special interest group.

The case involves the clash of two basic principles – the right of free speech and the right of corporations and private entities to spend unlimited amounts of money to influence elections. The high court can go in a number of directions, Cabot explained. It can broadly undo many of the campaign finance laws that exist now in this country, permitting corporations to basically bankroll campaigns. Or it can rule in favor of the federal law prohibiting so-called independent expenditures. Or it can rule more narrowly, leaving many states to determine whether their laws are still applicable.

Cabot said the court’s ruling in this key case will go a long way toward signaling whether the Roberts court is content to allow precedent to stand or is determined to overturn past rulings.

“Will the ruling be broad or narrow?” Cabot asked. “If it’s broad, it could have stunning practical consequences.”

All three speakers agreed that should a vacancy on the court occur, depending on which justice were to leave, it could have a profound effect on future rulings and the rights of Americans in virtually dozens of areas.

Fulco and Cabot agreed that politics and ideology rightfully play a profound role in the decisions of the senators who vote to confirm. Cabot said it is “totally legitimate for senators to vote their convictions.” And Fulco argued that justices do, in fact, make law, despite their frequent denials. “If the court didn’t make decisions that affect policy,” she asked rhetorically, “why do we have a third branch of government?”

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