Supreme Court nomination sideshow
Is there any logic to why this matters?
Of the 146 individual nominations to the Supreme Court since President George Washington (not including Chief Justice nominations):
121 were confirmed (including nominations that lapsed, were postponed or withdrew at an earlier point in the process)
8 withdrew, to not be confirmed at any point
10 were ultimately rejected
5 lapsed permanently
1 was postponed and never received a confirmation vote
1 is in the midst of a confirmation process
Eighty-three percent of all nominations are confirmed. Less than 7 percent are rejected.
The last 3 Supreme Court nominations passed by slim margins (average = 52 votes) and media reports suggest the White House is confident that all 50 Democrats and VP Harris will come together to confirm Judge Ketanji Brown Jackson.
From 1980 until the Republican Senate blocked Merrick Garland from receiving a nomination hearing in 2016, every Supreme Court nominee received at least 58 Yea votes with 5 nominees receiving 90+ Yea votes.
Clarence Thomas in a highly contentious hearing due to serious sexual harassment allegations was narrowly confirmed 52-48 in 1991. Neither the Yeas or Nays were along party lines.
Robert Bork was rejected in 1987 because of bipartisan opposition to his stance on civil and women’s rights. Characterized as an extremist by Senator Ted Kennedy and others, Bork was only the second Supreme Court nominee to be opposed by the ACLU.
Harriet Miers, who had no experience as a judge, withdrew her nomination in 2005 as both Republicans and Democrats objected to her having “no experience with constitutional law and no known judicial philosophy to guide her thinking on important issues, such as private property rights and religious freedom.”
I chose 1980 as a line of demarcation since every sitting member of the current Supreme Court and each living retired Supreme Court Justice was nominated by a President who served in those years.
And after reviewing each Supreme Court exception, it is objectively unusual that current nomination processes have become so contentious. Sandra Day O'Connor (first female Supreme Court Justice) and Antonin Scalia (first Italian-American Supreme Court Justice) passed their nominations with 99 and 98 Yea votes, respectively, and zero Nay votes.
Supreme Court confirmations
According to Gallup, Judge Jackson has the 2nd highest favorability rating of any Supreme Court nominee since Gallup started measuring support for Supreme Court Justices in 1987. Moreover, she was confirmed by the same Senate last year to serve on the U.S. Court of Appeals for the D.C. Circuit Court. Republican Senators Susan Collins, Lindsey Graham and Lisa Murkowski all voted to confirm her. Republican Senator Cornyn interestingly voted Jackson to advance beyond the Senate Judiciary Committee to only vote against her Court of Appeals nomination.
Over the past 3 days, Senators provided opening statements and interviewed who would be the first Black woman to serve on the Supreme Court. And unless a bombshell revelation appears during day 4 when the Senate speaks to outside witnesses and the American Bar Association, the exact vote total can be predicted with high accuracy.
So why have Senate hearings given they are not explicitly stated in the Constitution’s Article II, Section 2 (bold text by me):
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Prior to Louis Brandeis confirmation in 1916, America did not have public confirmation hearings, and only one hearing in that entire time requested witnesses to testify. The first time a Supreme Court nominee appeared at a confirmation hearing was in 1925, and TV hearings only started with Sandra Day O’Connor in 1981.
Legitimate criticisms of Judge Jackson?
As Senator Murkowski put it, "The difference is, you have nine people who sit on the highest court in the land, who are there for life, and it requires a level of review and scrutiny that is in line with the position.” Judge Jackson is 51 years old and could very well serve on the Supreme Court well beyond the 16 year average tenure. Yet logically Murkowski’s argument is best responded to by term limits, not who serves on the bench.
Multiple organizations and opinion pieces over the years have argued constructively for term limits, and in December 2021 the Presidential Commission on the Supreme Court of the United States made a similar argument in their report.
Proponents of term limits argue that regularizing the appointments process would address these arbitrary consequences of life tenure by making judicial appointments more predictable and the composition of the U.S. Supreme Court more rationally related to the outcome of democratic elections over time. Proposals for staggered eighteen-year terms..would ensure that all Presidents have the opportunity to appoint two Justices to the Supreme Court in each term they serve.
Long fixed terms, such as terms of eighteen years, coupled with post-service guarantees of financial security, would insulate individual Justices from political pressure and financial temptation and function as effectively as life tenure to safeguard judicial independence.
Proponents of term limits also believe that they would enhance the Court’s decisionmaking, on the ground that a regular rotation in personnel tends to improve the quality of decisionmaking over time.
The same report does a good job of explaining criticisms to term limits and how term limits could be enacted. As fascinating as the particulars may be though, our modern Senate is content with extending the culture war debate to Supreme Court nomination hearings.
A few of the Senate criticisms:
But this last tweet sums up how Republicans really feel:
Each of the criticisms above and during the hearings can and should be considered by the Senate but of those who intended to vote Yea prior to the hearings, who would change their vote because:
A judge has discretion to choose penalties.
Critical race theory could likely come before the Supreme Court and a judge can only rule once facts are presented.
In a secular society, ruling on religious factors is by definition discriminatory and prior cases would provide evidence if indeed the nominee is discriminatory.
Of those who intended to vote Nay, will any consider Judge Jackson’s intelligent response to her defending Guantanamo Bay detainees:
Of course we all know the answer, which begs the question - what are legitimate criticisms of any Supreme Court nominee (who has not violated the law)? In the dozens of interview hours (which I admittedly did not hear in its entirety), imagine if the Senate really probed nominees on;
the role of the courts in monopolistic behavior (Amazon’s antitrust suit was just dismissed by an arguably incompetent judge)
unchecked government spying on citizens without warrants (the FBI only recently stopped using the dangerous spyware tool named Pegasus),
the President’s ability to launch wars without Congressional approval (the last time Congress declared war was in 1942),
whether corporations are treating workers’ right to unionize fairly (e.g. Amazon’s Bessemer warehouse),
And could the Senate better advise the President if testimonies were written and not televised? Republican Senator Sasse made a reasoned argument for not having cameras in the court:
I actually believe the public may benefit from televised Supreme Court hearings as the majority of public conversation revolves around cultural issues rather than the financial and economic issues which flood the highest court in the land with many citizens unaware of how much those cases impact our lives. However, the argument Senator Sasse makes is very true of publicized Senate hearings for judicial nominees (and many other nominees as well - ambassadors come to mind). If nomination hearings are not televised, there would in theory be much less showboating.
And if there were term limits, perhaps the Senate could once again have large bipartisan confirmations - assuming they don’t value the culture war more.
..to learn more: