Just 10 days before Antonin Scalia's death, Chief Justice John Roberts criticized the Supreme Court nomination process as too politicized, a videotape of his remarks show.
In a speech to New England Law, a private law school in Boston,
videotaped last month by C-Span, Roberts declared "the process is not functioning very well."
Roberts explained in the speech that Scalia was confirmed by a Senate vote of 98-0, and in 1993, Justice Ruth Bader Ginsburg sailed through with 96-3. But the last three nominees haven't fared so well.
The New York Times, which posted the C-Span link on Monday, reports President George W. Bush-appointee Justice Samuel Alito, Jr. had 42 votes against him, and President Barack Obama's nominees, Justices Sonia Sotomayor and Elena Kaman, were opposed by 31 and 37 votes respectively.
"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."
Confirmation fights damage the Supreme Court's legitimacy and authority, Roberts warned.
"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 member 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, and I think it's a very unfortunate impression the public might get from the confirmation process," he warned.
The Times notes Scalia himself, in 2007, speaking to a bar group in Memphis, commented on the "controversial, bitter confirmation process."
"I was confirmed 98 to 0,"
he said at the time. "I was known as a conservative then, but I was perceived to be an honest person. I couldn't get 60 votes today."
Roberts hasn't spoken about
Obama nominee Judge Merrick Garland — or the
GOP Senate push back to any confirmation hearings until a new president is selected.
But some law experts tell the Times he should.
"That would be a John Marshall moment," Akhil Amar, a Yale law professor, tells the Times.
"He'd be crossing party lines, so to speak and this would be a third extraordinary moment of John Roberts showing that he is no partisan," he said, referring to Roberts's past votes upholding Obamacare.
Added New York University law professor Barry Friedman: "It's the chief justice's job to guard the institutional integrity of the court."
"It would be appropriate for the chief justice to remind the coordinate branch of government that they are leaving the Supreme Court in an awkward state for a couple of terms if they don't act," he tells the Times.
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