In remarks at a college yesterday, the Chief was right to say that the confirmation process is exceedingly partisan:
“It is a real danger that the partisan hostility that people see in the political branches will affect the nonpartisan activity of the judicial branch. It is very difficult I think for a member of the public to look at what goes on in confirmation hearings these days, which is a very sharp conflict in political terms between Democrats and Republicans, and not think that the person who comes out of that process must similarly share that partisan view of public issues and public life.”
The part where he is wrong is when he says that the Justices decide the cases before them “in a completely nonpartisan way.”
If by that the Chief means that the Justices do not consciously consider the positions of the party of the President that appointed him or her, that’s probably correct. But where he is incorrect is to suggest that there is no partisan valence to the decisions of the Court. On issues like affirmative action, voting rights campaign finance, abortion, environmental law and more—-the most difficult issues to come before the Court—the Court generally divides along ideological lines. And since the retirement of Justice Stevens, those ideological lines correspond with partisan lines as well. All the conservative Justices were appointed by Republican presidents and all the liberal Justices were appointed by Democratic presidents.
To pretend it is “nonpartisan” and balls and strikes ignores reality.
And the trend is likely to get much worse.