WASHINGTON (CN) — Gone are the days of Supreme Court nominees being confirmed by over 90 senators. Now a bipartisan Supreme Court confirmation means only a few votes from the opposing party.
It is likely that Judge Ketanji Brown Jackson will be confirmed to the Supreme Court. What is uncertain is by what margin.
“We're in a situation where you have the Republican caucus, overwhelmingly I think, having decided in advance that it will not support, I think any nominee it's fair to say, by a Democratic president,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone call. “So I think we're in a situation now where it's highly unlikely she could get even 60 votes.”
The reason Supreme Court nominees will now likely be confirmed by much smaller margins is because of how politicized the confirmation process has become.
Most experts trace the politicization of the Supreme Court nomination process back to Robert Bork. Democrats opposed Bork’s nomination because of his extreme conservative views, which were put on blast during his hearings. Ultimately Bork was denied a seat on the high court spurring the term to “bork” a nominee — which came to be known as attacking a person to prevent their appointment to public office.
However, Bork’s nomination was voted down by a bipartisan majority, and nominees after him enjoyed Republican support. Justice Anthony Kennedy, nominated by Reagan, was confirmed by 97–0. Justice David Souter, nominated by Bush, was confirmed by 90–9. Justice Ruth Bader Ginsburg, nominated by Clinton, was confirmed by 96–3.
More recent confirmation controversies can be placed in two buckets: questions over a justices’ background or contentions about the confirmation process. The confirmation hearings for Justices Clarence Thomas and Brett Kavanaugh became embroiled in politics when women came forward accusing them of sexual misconduct. When Justices Neil Gorsuch and Amy Coney Barrett came before the Judiciary Committee, senators were fighting political battles over then-Majority Leader Mitch McConnell making rule changes to benefit Republican nominees.
The confirmation hearings for Jackson include none of those controversies and yet they’re still being plagued by partisan politics.
“What's interesting now is that there is no issue of process here, President Biden is clearly entitled to pick someone for the Supreme Court to replace Justice Breyer,” Lawrence said. “There's no issue of character, my goodness her character’s exemplary. So what is the issue that we're talking about? I think this is just flat out political divide.”
On the first day of the confirmation hearings, some senators spent more time airing political grievances than addressing the issue at hand. Other senators have asked Jackson questions laced with political vitriol instead of addressing her record.
“I can only wonder what your hidden agenda is,” Tennessee Republican Senator Marsha Blackburn said during the first day of hearings. “[Is] it to let violent criminals, cop killers and child predators back to the streets? Is it to restrict parental rights and expand government’s reach into our schools and our private family decisions? Is it to support the radical left attempt to pack the Supreme Court?"
Republican Senators Josh Hawley and Ted Cruz baselessly accused Jackson of being soft on child pornography offenders. Cruz went on to vigorously question Jackson’s views on race, racism, and critical race theory. In one exchange, Cruz attacked Jackson over books taught at a private school where she sits on the board of trustees.
“This is a book that is taught at Georgetown Day School to students in pre-K through second grade,” Cruz said. “Do you agree with this book that is being taught with kids that babies are racist?”
Jackson reminded Cruz that she was before the committee to discuss her judicial work, which did not include children's books.
“I have not reviewed any of those books, any of those ideas,” Jackson said. “They don’t come up in my work as a judge, which I am respectfully here to address.”
By asking these questions, senators are seemingly trying to appeal to their political base.
“It's just political grandstanding,” Lawrence said. “It's asking questions that they know will adhere to their political base even though it's not relevant to this candidate for nomination to the court, and it really has nothing to do with the merits of this confirmation hearing.”
Some senators may be strategically making use the air time to make political points in anticipation of upcoming elections.
“I think the Conservatives are just doing a political show and some of them are running for president, that's no secret,” Cedric Powell, a law professor at the University of Louisville, said in a phone call. “So they are playing to their base. These questions really aren’t connected to her expertise or judicial temperament. Most of the questions are politicized questions designed to send a signal to their constituents.”
Bringing politics into the confirmation process for justices has led to what’s supposed to be an independent judicial institution being politicized.
“The U.S. Supreme Court is a very powerful institution, but the only way it has power and legitimacy is if people respected as an institution and will listen to it when it speaks,” Powell said. “If people think that these are just political outcomes based upon party and without any reference to the law, the court will have a serious problem in terms of its legitimacy because the citizenry won't believe it, and then it is undermined as an institution.”
For now, it doesn’t appear the Senate is looking to tamp down the polarization over Supreme Court nominations.
“In the short term, I think we have hopelessly politicized this process,” Lawrence said. “I think Senator McConnell has made clear that if the Republicans retake these Senate in 2022, that he will not be inclined to confirm and that will Supreme Court justice for a Democratic president … So I think we reached a very bad place.”
Follow @KelseyReichmann
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