Supreme Court Gets Supremely Partisan

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Ketanji Brown Jackson is the latest nominee to be confirmed to the Supreme Court of the United States.  When President Joe Biden nominated now-Justice Jackson on February 25, 2022, he was fulfilling a promise, made on the 2020 Presidential Campaign trail, to nominate the first Black woman to the Supreme Court.  Jackson’s nomination comes after Justice Stephen Breyer announced he would be retiring from the Court when its summer recess commences.  Judge Jackson’s confirmation would replace a pragmatic liberal in Breyer with a justice nominated by a Democratic President.  This is important to President Biden and liberals alike because of the current imbalance of conservative justices on the Court.

Previously, now-Justice Jackson was nominated in 2021 by President Biden to serve on the U.S. Court of Appeals for the D.C. Circuit.  Prior to 2021, she served on the bench of the U.S. District Court for the District of Columbia.  The Senate confirmed Judge Jackson’s nomination to the Court of Appeals on June 14, 2021, with a 53-44 vote.  However, this time around, not even a year later, Judge Jackson’s confirmation was much murkier as Senators must think about how their vote will look to the voters in each of their respective states.  When Judge Jackson’s hearings began on March 21, questions about Judge Jackson’s previous sentencing decisions arose as well as questions about her personal and religious beliefs.   From March 21 to March 24, Judge Jackson faced over 24 hours of questioning.  As of March 31, the Senate will vote to confirm Judge Jackson on Monday, April 4.

Supreme Court Justice Ketanji Brown Jackson has become the first Black woman to sit on the Supreme Court of the United States.  Justice Jackson joins Sonia Sotomayor who is both the first Hispanic person, as well as the first Hispanic woman, to sit on the Court.  However, there had been skepticism over now-Justice Jackson’s confirmation.  In the current 117th Congress, the Senate currently sits with 50 Republicans, 48 Democrats, and 2 Independents who caucus with Democrats.  Now-Justice Jackson needed at least 51 votes to be confirmed.  She ended up receiving 53 votes.

The United States Senate must give a president their “advice and consent” for certain nominations in the Executive Branch as well as the Judicial Branch.  In Article II, Section II of the Constitution it states, “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”  This is what forces the Senate to vote on presidential Supreme Court nominees.  It was not a political issue until very recently.

In Recent Years, the Average Confirmation Has Taken Over 67 Days

Prior to Judge Ketanji Brown Jackson’s arguably contentious nomination, the previous two nominations of now-Justice Amy Coney-Barrett and now-Justice Brett Kavanaugh attracted their own controversies.  Now-Justice Coney-Barrett was tabbed to replace the well-respected Ruth Bader Ginsburg in an election year, and now-Justice Kavanaugh faced questions about his behavior as a youth.  Prior to their nominations, now-Justice Clarence Thomas’s nomination had its own controversy as well regarding his alleged sexual assault of Anita Hill.  In recent years, these Supreme Court nominations created tension between Democrats and Republicans; liberals and conservatives; and raised questions about the morality of the members of the Court.

Prior to the middle of the 20th Century, votes on Supreme Court nominations were to ensure potential justices had the general qualifications of being a Supreme Court Justice.  Therefore, confirmation votes were relatively quick and easy.  For example, future Chief Justice Edward Douglass White was nominated by President Grover Cleveland on February 19, 1894 and confirmed on the same day!  Of the 115 Justices that have served on the Supreme Court of the United States, 61 were confirmed within ten days.  Despite over half of the confirmations occurring within ten days, the most recent to do so was Justice Byron White in 1962.

One of the earliest confirmations that was met with controversy and pushback was that of Justice Louis Brandeis.  Justice Brandeis was confirmed after 125 days in 1916.  His confirmation was lengthy due to his Jewish background and his previous litigation experience advocating for worker’s rights.  At this point, and up until 1967, every single judge nominated and appointed to the Supreme Court had been a white man.  Since 1967, the Court has added: the first Black Justice with Justice Thurgood Marshall, the first woman Justice with Justice Sandra Day O’Connor, and the first Hispanic Justice with Justice Sonia Sotomayor.  From 1975 to Present, the average nomination has taken over 67 days.  Prior to the nomination of Earl Warren in 1954, the average nomination was just over 13 days.  But why such a drastic change?

Turning Partisan

Supreme Court Justice Neil Gorsuch once wrote that politicians are less concerned with “promoting the best public servants and more [concerned] with enforcing litmus tests.”  This was back in 2002, over a decade before Gorsuch would ever see the bench of the Supreme Court.  Gorsuch went on to say that there had been a shift amongst both major political parties to push candidates who will support their own interests.

President Donald Trump was the first president since George H.W. Bush to serve a single term.  Despite this, President Trump wielded the power to nominate a Supreme Court Justice three separate times.  Justice Antonin Scalia was replaced in 2017 by Neil Gorsuch, Justice Anthony Kennedy was replaced in 2018 by Brett Kavanaugh, and Justice Ruth Bader-Ginsburg was replaced in 2020 by Amy Coney-Barrett.  President Biden, in the beginning of this second year as President, has wielded the power to nominate his first Supreme Court Justice in now-Justice Jackson.

Before Gorsuch’s comment in 2002, was the Supreme Court nomination of Robert Bork by President Reagan in 1987.  This nomination was met with lots of political opposition for the originalist.  Senator Ted Kennedy would say the confirmation of Bork would lead to “back-alley abortions” and “segregated lunch counters.”  Bork would also be criticized for the “Saturday Night Massacre” when he fired Special Prosecutor Archibald Cox in an attempt to shield President Nixon from Watergate investigations.  After a 114 day wait, in a 58-42 vote, Bork was not confirmed to the Supreme Court. The criticism of Bork stemmed from his involvement in Watergate and for his controversial beliefs, such as there being no right to privacy under the Constitution, which could result in the overturning of cases like Roe v. Wade.  The four most recent Supreme Court nominations prove Gorsuch’s point at what a circus confirmation hearings have become.  Although three of the four were confirmed to the Court, all of the nominees were criticized in ways similar to Bork.

Recent Nominations

After the death of Antonin Scalia in 2016, President Barack Obama nominated Merrick Garland to the Supreme Court.  President Obama was in the last year of his second term as President.  Senate Majority Leader Mitch McConnell did not want to confirm a justice until a new president had been elected and could nominate a candidate of their choice.  McConnell went on record to say, “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration.  The next president may also nominate someone very different.  Either way, our view is this: Give the people a voice.”  The eleven members of the Senate Judiciary Committee agreed and the proceedings never proceeded.  This was despite many Republicans previously praising Garland.  President Trump would enter office, Gorsuch would be nominated, and subsequently fill Scalia’s vacant seat when confirmed in a 54-45 vote with 51 ayes being Republicans.

Because of the Senate deadlock, the Supreme Court would go fifteen months with only eight justices.  Having an even numbered Court, with four justices nominated by Democratic Presidents and four nominated by Republican Presidents created its own deadlock in reaching majority decisions.  This only added to the importance of the 2016 Presidential election.  Electing Donald Trump ensured the supremacy of the conservative wing of the Court.  President Trump promised to nominate a conservative justice, satisfying his base’s pro-gun and pro-life views and concerns.

After Justice Kennedy announced he would retire in 2018, President Trump nominated Brett Kavanaugh to the Supreme Court.  His nomination turned into a political bloodbath and his nomination took almost three months.  Democrats staunchly opposed Kavanaugh’s conservative ideologies.  When allegations of sexual assault arose, Democrats pushed back further in their attempt to stop the confirmation.  In a 50-48 vote, 49 Republicans supported Kavanaugh with Joe Manchin of West Virginia being the lone Democratic Senator to vote aye.  Justice Kavanaugh took the bench on October 6, 2018.

Following the death of Ruth Bader Ginsburg in 2020, President Trump nominated Amy Coney-Barrett.  Democrats attempted to halt her confirmation as it was just months prior to the 2020 Presidential Election.  Justice Ginsburg died on September 18^th, 2020.  Just eight days later, President Trump nominated now-Justice Coney-Barrett.  Because the Senate was a majority Republican, Democrats could only stand by and watch the “raw exercise of power.”  Now-Justice Barrett was confirmed in a 52-48 vote with no Democrats voting aye to confirm Barrett.

“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.”-Chief Justice John Roberts

All Republicans voted nay to confirm now-Justice Jackson, except for Maine’s Susan Collins, Utah’s Mitt Romney, and Alaska’s Lisa Murkowski.  Even with Judge Jackson’s impressive public service record, she was still exposed to seemingly partisan questioning about topics such as critical race theory, transgenderism, and abortion rights.  The numbers demonstrate that, in recent years, the party in power in the Senate will vote to confirm or disapprove of a nominee based solely on political leanings.

Confirmation hearings airing live on TV create more visibility for the average American. Senators use these hearings to ask questions about judicial philosophies.  Certain questions were intended to flesh out Judge Jackson’s views on the law, others were clearly intended to hear her views of hot-button, political cliches.  Questions that are the latter are meant to signal to voters that Senators are doing their due diligence on issues important to them, when in reality, are not the legal questions that come before the Court.  Chief Justice John Roberts said in 2005 that “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.”  Maintaining division benefits those with agendas to put a political ally on the bench.  This creates the arbitrary litmus tests Gorsuch warned of litmus tests politicians are so eager to enforce to keep the circus running.

Overall, 58% of Americans support Judge Jackson being confirmed to the Supreme Court, the highest of a Justice since John Roberts in 2005–but that 58% is made up of 88% Democrats.  Partisanism starts with the people.  It can end with the people as well.