John Roberts before Scalia’s death: voting for justices on partisan lines “doesn’t make any sense”

Ten days before Supreme Court Justice Antonin Scalia unexpectedly passed away in February, Chief Justice John Roberts delivered some harsh criticism about the Court’s confirmation process.

He said the Senate should only assess whether nominees to the high court are sufficiently qualified and leave politics out of their consideration, according to the New York Times’s Adam Liptak.

“Look at my more recent colleagues, all extremely well qualified for the court, 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,” Roberts said at the Boston-based New England Law. “That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

Roberts could not have known at the time how prescient his comments would turn out to be. In retrospect, they amount to a stern rebuke to members of his party — Roberts was nominated by George W. Bush — who are now holding up the nomination of President Obama’s pick, Merrick Garland, during a campaign year.

Roberts pointed to the smooth confirmations of a past generation, alluding to cases like Scalia’s 1986 confirmation on a vote of 98 to 0. But for the past three nominations — of Samuel Alito, Sonia Sotomayor, and Elena Kagan — votes fell along party lines, with dozens of lawmakers lining up to vote against each, even though he said they were “extremely well qualified.”

He has been echoing this same sentiment for many years now: As far back as 2012, Roberts lamented that partisanship in the Senate was stalling on filling an unprecedented number of lower federal court benches, creating a crisis in the justice system.

Sharply partisan confirmation hearings damage the authority of the court, Roberts told the crowd, and they color the tenure of any nominee who makes it through the process.

If Roberts believes his liberal colleagues Justices Sotomayor and Kagan are sufficiently qualified to sit on the court, it’s fair to think that the chief justice might hold Garland in similar esteem. The two served on the District of Columbia Circuit Court of Appeals together, after all, before Roberts was elevated to the Supreme Court. During his own confirmation hearings in 2005, Roberts told assembled senators, “Anytime Judge Garland disagrees, you know you’re in a difficult area.”