Seriously, this is a job for Chief Justice Roberts

By Steve Klepper (Twitter: @MDAppeal)

In a February 15 post, I proposed that Chief Justice Roberts publicly address the harm to the judiciary that would result from Senate Republicans’ proposal to turn the November 2016 election into a referendum on filling the Supreme Court vacancy. I cited Chief Justice Hughes’ 1937 letter undermining the “Court-packing plan” as precedent for such an unusual action. A number of commentators – including Lyle Denniston in a post for Constitution Daily, Ruth Marcus in a Washington Post column, and Gabe Roth in an MSNBC op-ed – later echoed the same argument.

I am under no illusion that Chief Justice Roberts would find the idea of a public statement anything but horrifying. But the political landscape, as it has unfolded over the last month, is far more horrifying.

First, nearly every Senate Republican, including all Republicans on the Senate Judiciary Committee, have adopted the Senate majority leader’s “No Hearing No Vote” position. If Senate Republicans do relent, it is going to take a protracted, painful fight.

Second, the Judicial Crisis Network began airing an Iowa ad attacking the Eighth Circuit Judge Jane Kelly for her advocacy as a federal public defender for a lenient sentence for her client on charges of child pornography. Shortly thereafter, Reuters reported that Judge Kelly apparently had fallen off President Obama’s short list. If you have any doubt that Chief Justice Roberts would find that Iowa attack outrageous, I’ll direct your attention to his dissent in Kaley v. United States (discussed here), criticizing forfeitures that interfere with choice of criminal defense counsel. He wrote that “Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching.”

And now CBS News is reporting on how both Democrats and Republicans are gearing up to turn the Supreme Court vacancy into a wedge issue in the Presidential race and swing-state Senate races.

I previously suggested that Chief Justice Roberts, like Chief Justice Hughes before him, author a letter to the Senate Judiciary Committee. But no such formal stance is needed. Already, Justice Alito and Justice Breyer have fielded questions at public events. Chief Justice Roberts will face no shortage of vacancy-related questions at public events, and he need only provide a substantive response.

Justices Alito and Breyer have both said that the Court will get by with eight justices. Of course the Court will manage in the short term. But it will take much longer to repair the damage from a Supreme Court nomination becoming a wedge issue in a national election. Chief Justice Roberts remains uniquely positioned to try to defuse the standoff before the situation spirals further downward.