Those are fair concerns, but they tend to be far more vocally advanced whenever one’s party is out of power. When Texas Democrats had a stranglehold on redistricting, not many Democrats spoke out against it. Since Republicans achieved a majority in the Texas Legislature, not many Republicans have spoken out against it.
The process is ugly, but it recalls Winston Churchill’s famous adage that “democracy is the worst form of Government, except for all those other forms that have been tried from time to time.” Likewise, congressional maps drawn by elected legislators have serious flaws. But the Framers of our Constitution entrusted those decisions to elected legislatures because they believed in democracy. Unaccountable federal judges drawing our maps would ultimately deprive the people of control over those crucial decisions.
The decision in LULAC v. Perry was 5–4. And when it comes to ensuring that We the People—the actual voters—control our elections, we are once again just one vote away.
There were stark similarities between Bush v. Gore and Texas redistricting. I was reminded of those in January of this year, during the impeachment trial of President Trump. Both Bush v. Gore and redistricting were complicated legal battles, interwoven with political knife-fighting. Both were directed at multiple audiences simultaneously—not just the judges or justices making the legal determinations, but also, in a very direct sense, at the American people. When the House of Representatives voted to impeach President Trump, and the Senate was required to carry out its constitutional obligation to conduct a trial on that impeachment, I resolved to lead the effort in the Senate to make the legal case and the public case for why the conduct alleged did not satisfy the constitutional standard of “high crimes and misdemeanors.”
There is a unique species of litigation which occurs only rarely and is sometimes separated by decades, where politics, public messaging, and persuasion are all entirely enmeshed with the legal arguments. Having been through now three such major battles—Bush v. Gore, redistricting, and impeachment—I am particularly grateful to be serving today in the United States Senate, where the responsibilities of defending the Constitution, of drafting the law, and of overseeing the Executive are so often interconnected with the realities of politics, the battle in the media, and the needs of public persuasion.
CONCLUSION
GETTING JUDICIAL NOMINATIONS RIGHT GOING FORWARD
Republicans have, historically speaking, been absolutely terrible at judicial nominations—especially nominations for Supreme Court justices. To borrow from baseball, Republicans at best bat .500. Once confirmed as justices, at most, half of Republicans’ Supreme Court nominations actually behave as we hoped they might behave in terms of remaining faithful to their oath of office and the Constitution.
Democrats, on the other hand, bat nearly 1.000. They are almost perfect in that almost every single Democratic Supreme Court nominee, on virtually every major case that is a hotly contested, votes exactly as the Democrats who appointed them would have wanted them to vote. Perhaps the most notable exception was Byron White, who was John F. Kennedy’s only Supreme Court nominee. Justice White’s great apostacy was that he was one of the two original dissenters in Roe, and sometimes he would also side with the more conservative justices on criminal cases. Aside from Justice White, Democrats’ Supreme Court justices, almost without exception, vote precisely as they would want them to.
It’s also not random or bad luck. There is a clearly definable pattern among Republican nominees, differentiating those justices who remained faithful to their oath, who stood strong and followed the Constitution, from those who did not.
Remember, if a judge changes on the bench, he or she always changes in the same way. Republican nominees only shift in one direction: they shift to the left. “Evolving” is the polite term. And it is because the pressure on a Supreme Court justice to move to the left is enormous. The press coverage consistently praises justices who vote with the left, heralding them as courageous heroes. Indeed, this past year, there were two separate movies that came out within months of each other, chronicling the life of Ruth Bader Ginsburg in hagiographic terms better suited for Mother Teresa or George Washington. Somehow Hollywood has never produced the film, Nino, The Extraordinary Justice Scalia.
So when Republican nominees side with the left on the Court, they’re praised in the newspaper, lionized as statesmen, and fêted publicly. This is so true that the former longtime Supreme Court reporter for the New York Times, Linda Greenhouse, had an entire syndrome named after her. Dubbed the “Greenhouse effect,” it was used to describe how justices like Anthony Kennedy and Sandra Day O’Connor gradually move ever more leftward in order to receive adoring praises from Greenhouse’s coverage in the New York Times.
It’s not just the press coverage; it’s also the entire dynamic of Washington, D.C. Justices who move to the left are welcome at cocktail parties. They are treated with respect, with deference, even with praise and adoration. They are among the “cool kids.” Republican-nominated Supreme Court justices who do not do that are barely acknowledged in polite society.
If you look back at the history of Republican nominations, there’s a clear difference between the Republican picks who stuck to their guns once they made it to the bench and those who backed down. And presidents and senators should examine that pattern before nominating or confirming anyone to the Court. The justices who have been most faithful to the Constitution include Justice Scalia, Justice Thomas, my old boss Chief Justice Rehnquist, and Justice Alito. All of them share important characteristics: Before they were nominated, each of those justices had a long and demonstrated record. Each had served in the executive branch, each had defended conservative or constitutionalist positions, and, critically, each had been roundly criticized
