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Supreme Court Caucuses

Sometime next week, Sonia Sotomayor will be confirmed as a member of the Supreme Court’s Democratic caucus.

Not technically, of course. The nine justices do not declare a party affiliation. But, these days, they might as well.

Sotomayor drew only one Republican vote — that of South Carolina’s Lindsey Graham — when the Senate Judiciary Committee approved her nomination 13-6 yesterday. Every Democrat backed her. The last nominee, Samuel Alito, did not get a single Democratic vote when the committee, with Republicans voting as a bloc, approved his nomination in 2006.

Alito went on to draw only four Democratic votes on the Senate floor. Sotomayor probably will not do much better among Republicans, but, with Democrats and independents solidly behind her, she likely will get at least 60 votes overall. She therefore will replace retiring Justice David Souter when the high court reconvenes this fall.

Like Alito, Sotomayor promised the Judiciary Committee that she will stick to the law and the Constitution. She pledged to avoid what her opponents called “judicial activism.” And, like Alito, she won the support of senators from the president’s party but not from the other side.

Conclusion #1: When a Supreme Court nominee promises to be impartial, nobody believes him (or her).

Conclusion #2: When politicians say they want impartial judging, they are telling a half-truth. They want impartial judging from the other party’s nominees. The rest of the time they want home-field advantage.

I feel cheated whenever I read another decision that breaks along the Court’s 5-4 ideological divide. How can nine of the country’s finest legal minds (okay, make that eight fine legal minds plus Justice Thomas) approach each case objectively, yet so consistently divide into two predictable camps? We have Justices Souter, Ginsburg, Stevens and Breyer on the liberal Democrat team, and Justices Thomas, Scalia and Alito, along with Chief Justice Roberts, on the conservative or Republican roster. Justice Kennedy, the usual swing vote, bats more often for the conservatives.

The Court issued 79 decisions in the term that just ended. Of these, 23 were decided on 5-4 votes, and Justice Kennedy was in the majority on 18 of those 23 occasions.

We rely on the Supreme Court to define the scope of government powers, particularly those of the federal government. Want to see what happens without a powerful and independent Supreme Court? Think back to our disputed presidential election of 2000, and then look at the YouTube videos smuggled from the streets of Tehran.

If the Court becomes a prisoner of its own dominant ideology, it loses that crucial independence. As Republicans and Democrats battle to stack the Court with people they consider reliable votes for their views, they try to rob us of a critical element of a free society. Remember, they have courts in Iran, too.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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