Dangerous Trends on the Supreme Court
Congress’ “advice and consent” to the president on appointments to the judiciary has become sharply partisan — and the numbers prove it.
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Three dangerous trends appear to be jeopardizing the independence and credibility of the third branch of the federal government. Court decisions are increasingly falling out along what appear to be purely partisan lines. The watershed moment for this trend was Bush v. Gore in 2000, when the court voted 5:4 to abort the Florida vote recount and declare George W. Bush president. All five justices who voted to end the recount were appointed by Republican presidents. The four who dissented had all been appointed by Democrats.
Disqualification By Litmus Test
Second, presidents are increasingly prone to use overt or covert litmus tests in nominating new justices to the court. Although most presidents proclaim (often indignantly) that they would never employ litmus tests, this sort of vetting (on abortion rights, same sex marriage, gun rights, etc.) nevertheless routinely takes place behind the scenes, often by way of carefully modulated tacit agreements which permit everyone involved to proclaim their innocence. President Donald Trump broke with tradition by openly declaring in 2016 that he would appoint only men and women who would work to overturn Roe v. Wade, the landmark 1973 abortion decision. He said, too, that he would make sure his nominees were absolutely unwilling to chip away at the Second Amendment. Virtually all nominees insist in their Senate confirmation hearings that their minds are open, that they would have to see the specifics of the case before they could formulate an opinion, that they have no preconceived opinions on these fundamental and decisive issues, and that they would never permit their personal views or politics to distort their judicial decisions. By now, the American people are justly cynical about these strenuous disclaimers. Rightly or wrongly, virtually no one believed Amy Coney Barrett when she said, in her 2020 confirmation hearings, that her Catholicism and participation in pro-life rallies in Indiana would not influence her vote on abortion-related cases.
The Rise of Routine Partisanship
The established norm was that the Senate would confirm the president’s choice unless there were a compelling reason to reject the nominee. Bipartisan confirmation didn’t mean that senators of the other party necessarily agreed with or approved of the views of the nominee, but both parties tacitly agreed both that elections matter (the president has the power of appointment) and that it is natural and inevitable that the other party’s nominees are likely to be at least somewhat ideologically different from one’s own party’s choices. This notion — that the Senate’s “advice and consent” role should routinely defer to the president’s choices so long as the candidate is not too extreme in outlook — continues to prevail for the approximately 1,200 other administration jobs that require Senate approval. In most cases, most of the opposition party votes to affirm the president’s choices, sometimes glumly, sometimes cheerfully.
But the stakes are now so high in Supreme Court appointments and the bipartisan norms that have prevailed through most of the last hundred years have at least temporarily collapsed, that bipartisan confirmations seem to have disappeared like VHS tapes and rotary phones.
The Collapse Of Consensus
Until recently, it was usually only the controversial Supreme Court nominees who have been confirmed by narrow majorities. After the second most bruising (some say disgraceful) confirmation ordeal in American history, Clarence Thomas was confirmed by a 52-48 vote on Oct. 15, 1991. Thomas, who was accused of sexual harassment by his former colleague Anita Hill, called his confirmation experience a “high-tech lynching.” He has now served for 30 years. President G.W. Bush’s last nominee Samuel A. Alito was finally confirmed 58-48 on Jan. 31, 2006. His Democratic opponents argued that he was insufficiently committed to civil rights and abortion rights, that he was too dedicated to states’ rights, and that he had been vague and evasive about his core beliefs during the confirmation process.
The Rise Of Partisan Bickering
Increasingly, justices are viewed through a lens of partisanship or ideology, and they are seen as interested in achieving the policy goals of their side rather than as disinterested legal thinkers.
Brett Kavanaugh was confirmed in October 2018 by a narrow 50-48 majority. Accused of having committed sexual assault as a teenager, Kavanaugh delivered perhaps the most undisciplined Senate hearing statement in the history of confirmation. He said the process had ruined his life, passionately denied the allegations, issued hostile rebukes to his Democratic detractors, and repeatedly insisted that drinking beer as a young man was not a disqualifying habit.
With the election of Donald Trump in 2016, bipartisan support largely disappeared. The Democrats continue to be enraged by the Merrick Garland affair and the subsequent confirmation of Amy Coney Barrett in the last 10 days of the Trump administration. The Republicans, like the elephants of their iconography, still hearken back to the rejection of the brilliant, if unrelenting Robert Bork, and their conviction that Kavanaugh was mistreated by Democrats on the Senate Judiciary Committee. The gloves are off.
In her confirmation hearing, Judge Ketanji Brown Jackson has followed a strategy perfected by Chief Justice John Roberts in 2005: Emphasize your respect for the Constitution and don't take the bait by senators working to elicit a legal point of view. https://t.co/t5NxHQBezT— The New York Times (@nytimes) March 22, 2022
Whether President Biden’s nominee Ketanji Brown Jackson will be confirmed by the U.S. Senate is unclear. Court observers believe she will be narrowly confirmed, perhaps with a couple of Republican votes, perhaps merely by a strict party vote with the addition of Vice President Kamala Harris’ tiebreaking vote as presiding officer of the Senate. What does appear to be clear, however, is that Ms. Jackson is exceedingly unlikely to be confirmed by the kind of broad consensus and deference of previous decades.
*Editor's note: a previous version of this article incorrectly stated that David Souter was appointed by Bill Clinton, instead of by George H.W. Bush.
You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour. He is also a frequent contributor to the Governing podcast, The Future in Context. Clay’s most recent book, The Language of Cottonwoods: Essays on the Future of North Dakota, is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing firstname.lastname@example.org or tweeting @ClayJenkinson.