In the past 50 years, ever since Jean Dubofsky has been a lawyer, Republicans have dominated the U.S. Supreme Court.
Since 1969, Republican presidents have appointed 13 Supreme Court justices. Democrats have appointed four.
But Dubofsky, who was the first woman named a justice of the Colorado Supreme Court in 1979 and famously led the successful challenge to Colorado’s anti-gay rights Amendment 2 before the U.S. Supreme Court in 1995, said that with rare exceptions the nation’s high court justices have been moderates.
That’s not an accident.
Dubofsky said that over history, the confirmation process has given preference to moderates because of the collective sense that “if you go too far one way or the other, the people will stop believing that the court is fair or that the justices will listen.”
That’s how Harry Blackmun, author of the landmark Roe v. Wade decision, ended up on the high court instead of the far-right, anti-civil rights nominees Clement Haynsworth and G. Harrold Carswell.
Richard Nixon had nominated Haynsworth, but conflicts of interest in his past decisions tanked his confirmation. Then Nixon picked Carswell, a white supremacist, and once again the Republican leadership joined Democrats in voting against confirmation.
Frustrated in his effort to put a segregationist on the court, Nixon settled for Blackmun, a moderate, who was confirmed unanimously.
My how things have changed.
Dubofsky said the “closest thing to a judge on the left” in our history was William O. Douglas. Meanwhile, Clarence Thomas and Samuel Alito are unapologetically on the far right of the political spectrum.
The Republican campaign to move the court to the extreme right under the guidance of the right-wing Federalist Society is blatant. By denying Merrick Garland, Barack Obama’s supremely moderate Supreme Court nominee, even the courtesy of an interview, Republicans turned the process into the spectacle of rabid partisanship we’ve seen in the past few weeks.
For Dubofsky and former Colorado Supreme Court Justice Michael Bender, the trend is alarming.
While it would be naïve to think the court has ever been above politics, making the rule of law foremost always has been the stated objective. And over our history, Bender said, most Supreme Court decisions have not been particularly partisan exercises.
In fact, most of the decisions are not even close, suggesting that personal differences are regularly set aside in deference to the law and legal precedent.
Since 2000, 36 percent of Supreme Court decisions have been unanimous. Only 19 percent of rulings have been 5-to-4 decisions.
Even landmark civil rights cases such as Brown v. Board of Education in 1954, Loving v. Virginia in 1967 and Gideon v. Wainwright in 1963 all were unanimous decisions. Roe v. Wade was decided by a 7-to-2 majority.
And that’s a good thing.
“But people have started to see the court in a very political perspective,” Bender said, “and that’s very damaging.”
While “it’s an absurdity to say the U.S. Supreme Court just calls balls and strikes,” he said, respect for the law above political ideology has been a powerful and critically important tradition — one that has made it difficult to guarantee ideological purity in justices with lifetime appointments.
“Just look at Earl Warren, Harry Blackmun, John Paul Stevens, Anthony Kennedy. All are Republicans who moved to the center over time,” Dubofsky said. “In fact, Justice Stevens had moved pretty far to the left by the time he retired.”
But while the recent vetting process has been notably remiss in identifying troubling personal behaviors, it has been rigorous in enforcing ideological fealty in an attempt to find candidates with immutable hard-line positions.
“People who are more open-minded pay attention to the facts of the case,” Dubofsky said. “The Federalist Society seeks ideologues who are true believers and less likely to change their views on the world.”
The thing that is tragic about the recent confirmation hearings, Dubofsky said, is that Brett Kavanaugh clearly believed it was in his best interest to revel in his extreme partisanship.
“When Judge Kavanaugh took off after the Democrats, he lost any pretense of moderation,” she said.
He obviously figured his partisan bona fides were his best asset.
In the zero-sum game of politics circa 2018, it’s come to this.
Moderation is for suckers.
Diane Carman is a Denver communications consultant. Twitter: @dccarman