Leahy may regret past court votes
By JASPER CRAVEN
SPECIAL TO THE RUTLAND HERALD | July 27,2014
In 2005, during the Supreme Court confirmation process for John Roberts to become chief justice, Sen. Patrick Leahy faced immense pressure on the left to deride Roberts, a George W. Bush nominee.
Leahy, the chairman of the Senate Judiciary Committee, eventually expressed support for Roberts, saying it would hurt the nation for a Supreme Court chief justice to be confirmed on a strict party-line vote.
President Barack Obama, then an untested Illinois senator in his first term, was one of the few to defend Leahy’s decision.
“I am deeply admiring of the work and the thought that Senator Leahy has put into making his decision,” Obama said. “The knee-jerk unbending and what I consider to be unfair attacks on Senator Leahy’s motives were unjustified.”
Though Obama did not vote for Roberts, he praised his “excellent record” and called him “qualified to sit on the highest court.”
Now, neither Leahy nor Obama have many nice words for Roberts and his court.
Though Leahy has not expressed outright regret for his past confirmation votes, he has been vigorously condemning the court’s recent major rulings that have split down party lines.
“Of course there will always be 5-4 decisions, but for rulings with great change they have to find unanimity or I’m afraid the respect for the court could disappear,” said Leahy, a Vermont Democrat, in an interview. “If that happens, I really worry this country could become chaotic.”
Since the 2005 Supreme Court term, 66 percent of all 5-4 decisions have been split by political ideology, according to figures from ScotusBlog.
Leahy has participated in the confirmation process for each of the current Supreme Court justices and has voted to confirm each one, save conservative Justices Clarence Thomas and Samuel Alito.
In recent blunt floor speeches, aggressive legislation, and special hearings, Leahy is hoping to undo some of the recent rulings on campaign finance, voting rights, and sexual health, among others.
Both Leahy and Sen. Bernard Sanders, I-Vt., have cosponsored legislation that would overturn the court’s recent ruling in Burwell v. Hobby Lobby Stores that some employers can refuse to provide contraceptive coverage because of their religious beliefs.
Leahy is also trying to restore federal oversight of voting rights laws in states with histories of racism, a provision gutted by the court in Shelby County V. Holder.
The Vermont senator, who has been on the Senate Judiciary Committee for more than 30 years, is also pushing to get cameras in the courtroom to increase public oversight of the justices.
“They say the courtroom is open, but that’s only for the 50 or 60 people who can fit inside,” Leahy said. “We have cameras in the Senate, (and) people know what I’m saying.”
Perhaps Leahy’s biggest frustration with the court comes from their rulings that have loosened restrictions on election spending, including Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission.
“Citizens United is a really wrong decision. It overturned all kinds of precedent,” said Leahy, who is pushing for a constitutional amendment to overturn the decision. “For five Republican appointees on the Supreme Court to totally twist the way this country assumed campaigns to be financed is horrendous.”
Russell Wheeler, a visiting fellow studying U.S. courts at the Brookings Institution, said there is a long tradition of Congress legislating against Supreme Court decisions.
“It’s within their authority and responsibility to do that, but if the decision is based on a constitutional provision, legislation has a harder time changing that,” Wheeler said.
“I don’t think you see as much of that anymore, though, because Congress can’t come up with a bill agreeing on what time it is,” Wheeler said.
The Supreme Court saw historically low approval ratings in the summer of 2013, according to the Pew Research Center. Favorability with the court has rebounded some this year, to around 56 percent.
Wheeler said Roberts has become aware of the court’s battered image, and is trying to coalesce the justices into agreeing more often.
“The chief justice appreciates the damage to the court’s prestige with all the 5-4 decisions,” he said. “I think he has worked hard to try to pull in as many as possible when he’s writing the majority opinion.”
In the last Supreme Court term, 48 cases out of 73 were decided unanimously, as opposed to 38 in the term before. But political preferences still seem to emerge on the loftiest cases.
“This if the first time I can remember in which the typical 5-4 decision is five Republican appointees and four Democratic appointees,” Wheeler said.
The next major worry for Leahy and other liberals regards which party will have the opportunity to nominate the next member of the court.
Many have called for Ruth Bader Ginsburg, a left-leaning justice, to retire before the 2016 elections so Obama can appoint another liberal to the court. But Ginsburg has shown no signs of slowing down, and has not indicated she will retire before 2016.
“I think people are going to have to awaken to the fact that presidential elections are about changing the court as anything else,” Leahy said.
— Jasper Craven is affiliated with the Boston University Journalism Program.