The importance of an independent Judicial Branch was highly stressed by Hamilton in Essay 78 of the Federalist Papers. It was thought that with life appointments judges would be able to avoid the pressures that politics inherently creates. It was argued that lifetime appointments would further separate the judicial branch from the Executive and Legislative Branch’s. This separation has failed as successive Presidents have made their appointments solely on political merits and the legislative branch has created Legislation that further politicized the process of appointing a judge. This partisanship could not have been clearer when the Senate Republicans blocked President Obama’s pick, Merrick Garland, for the Supreme Court in 2016. Or when Democrats changed the rules for Presidential nominees that allowed for a simple majority to advance a nominee. Thus, the Judicial Branch is no longer, and perhaps never was, the intermediary between the Executive and Legislative Branch. Instead it has become a Court which both branch’s try and use to push their respective ideological agendas.
A quick look at history will show that nominations to the supreme court have always involved politics. Indeed, the first Supreme Court Chief Justice appointed by Washington was John Jay, a staunch Federalist and one of the advocates for a strong Federal government. This shows that from the beginning the Supreme Court was far from independent and was indeed intimately connected to the Executive, being relied upon to push said executive’s policy agenda. This appointment paid off for Federalist when the Supreme Court ruled in Chisholm v. Georgia that the federal courts had the power to supersede state sovereignty. Another example of this connection is when Adams was leaving his one-term Presidency and, along with Congress, passed an act that filled as many judgeships as possible. Further showing the reliance that Congress and the Executive placed on the Judicial branch pushing their agenda. This act was particularly important as one of the appointees, John Marshall, helped establish the concept of judicial review in the landmark case Marbury v. Madison. In light of this history current politicians acting surprised at the highly political nature of appointing nominees to the Supreme Court comes off as disingenuous. Indeed, early Federalist assertions that the Judicial Branch would be independent from other branches of government also seems a bit naïve at best and at worst a downright lie.
Federalist #78 presented to the young Republic an idealized version of how the Judicial Branch ought to function. In reality, the Federalist knew that the Judicial Branch would be connected to other branches of government but they also had to convince the states to ratify the Constitution and thus were willing to lie to accomplish such goals. The way judges were nominated assured this reality as executives would most probably pick candidates that would push their political agenda. Likewise, depending on the party in power, the Congress would only accept candidates brought before them that aligned with their political interests. I don’t necessarily view a politicized Judicial Branch as a bad thing as I find it important for a Judicial System to evolve with the views of the populace instead of worrying about the original intent of the founders. However, I do believe it is harmful for politicians on both sides to become so polarized as to not even give a nominee a hearing. Acting in such a matter could create more judicial decisions that uphold laws that otherwise would have been overturned had another judge been there to vote on it. The Judicial Branch has been political since its creation and will continue to be so and long as the current system stands.