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Column: Just before Scalia's death, the Supreme Court's chief justice said the Senate should ensure that nominees are qualified, period. Leave politics out of it.

 
Published March 22, 2016

WASHINGTON — Last month, Chief Justice John Roberts delivered some blunt remarks about the Supreme Court confirmation process. The Senate should ensure that nominees are qualified, he said, and leave politics out of it.

The chief justice spoke 10 days before Justice Antonin Scalia died, and he could not have known how timely and telling his comments would turn out to be. They now amount to a stern, if abstract, rebuke to the Republican senators who refuse to hold hearings on President Barack Obama's nomination of Judge Merrick Garland.

It was not long ago that qualified nominees coasted onto the court, Roberts said last month. In 1986, Scalia was confirmed by a vote of 98-0. In 1993, Justice Ruth Bader Ginsburg was confirmed by a vote of 96-3.

These days, Roberts said, "the process is not functioning very well."

The last three justices should have sailed through, too, he said. He was referring to Justice Samuel Alito, appointed by President George W. Bush, and justices Sonia Sotomayor and Elena Kagan, appointed by Obama. Forty-two senators voted against Alito, 31 against Sotomayor and 37 against Kagan.

"Look at my more recent colleagues, all extremely well qualified for the court," Roberts said, "and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn't make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees."

If Sotomayor and Kagan were "extremely well qualified for the court," it is a safe bet that Roberts has a similarly high regard for Garland, with whom he served on the U.S. Court of Appeals for the District of Columbia Circuit.

"Anytime Judge Garland disagrees, you know you're in a difficult area," Roberts said at his 2005 confirmation hearing.

In last month's remarks, delivered at New England Law, a private law school in Boston, the chief justice raised a second concern: Ugly confirmation fights damage the Supreme Court's legitimacy and authority.

"When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms," he said. "If the Democrats and Republicans have been fighting so fiercely about whether you're going to be confirmed, it's natural for some members of the public to think, well, you must be identified in a particular way as a result of that process."

"We don't work as Democrats or Republicans," the chief justice said, "and I think it's a very unfortunate impression the public might get from the confirmation process."

Roberts was speaking in general terms, of course, and he has not addressed Garland's nomination or the possibility that the Supreme Court will have just eight members for a year or more. Perhaps he should.

"That would be a John Marshall moment," said Akhil Amar, a law professor at Yale, referring to the chief justice most responsible for the Supreme Court's surpassing stature and central role in American life.

Amar added that "nothing prevents the chief justice from expressing his very high regard" for Garland. Indeed, he said, there is recent precedent for judicial endorsements of a Supreme Court nominee. In 2006, seven appeals court judges testified on Alito's behalf at his confirmation hearings.

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In 2007, speaking to a bar group in Memphis, Scalia reflected on what he said had become "a controversial, bitter confirmation process."

"I was confirmed 98-0," he said. "I was known as a conservative then, but I was perceived to be an honest person. I couldn't get 60 votes today."

© 2016 New York Times