U.S. Supreme Court justices wear black robes, sit on a dais where they “hand down” decisions and work in a large marble temple that one justice in the 1930s said the justices should commute to riding on elephants. All of these trappings are designed to create public awe surrounding the Supreme Court.
Yet, the events of recent Supreme Court nominations have undermined those images. Clarence Thomas faced sexual harassment accusations from Anita Hill and claimed he was the target of a “high-tech lynching.” Robert Bork’s video store rentals were scrutinized. John Roberts’ adoptive children became the subject of news stories, as did Samuel Alito’s membership in a club at Princeton.
That was all before the case of Brett Kavanaugh. In the past couple of weeks we saw Christine Blasey Ford accuse Kavanaugh of sexually assaulting her while both were in high school, Kavanaugh’s own meltdown on national television filled with partisan criticism of “the left,” an examination of potential sexual references in Kavanaugh’s high school entries, analysis of the extent of Kavanaugh’s high school and college drinking, and protesters filling the galleries of the U.S. Senate shouting down U.S. senators.
Why has the Supreme Court nomination process become so personal? One reason — an important one — is that the court has become an ideological football. Conservatives oppose justices they perceive as liberal and vice versa. Kavanaugh was seen as a threat to liberal sacred cows such as Roe v. Wade and Obamacare. Similarly, Sonia Sotomayor roused opposition because of charges she was anti-white male. Ideological groups now are predictable in their support or opposition of nominees depending on which party is represented in the White House.
Yet, ideology hasn’t always been so important in Supreme Court nominations — either for the president or the Senate. George Washington chose his nominees primarily on merit, friendship and geographical diversity. Harry Truman’s nominees were all friends of his, including the Republican Sen. Harold Burton. Through most of the nation’s history, Supreme Court nominees were appointed on the basis of friendship, merit, geographical diversity and religious diversity more than on ideological conformity with particular presidents, political parties and interest groups.
Nor have senators always been so ideologically minded. Throughout the 20th century, most nominees were passed with wide margins. Generally, senators held the approach that opposition was valid only on the basis of lack of merit, not on what the nominee’s views were on any particular issue.
Why has ideology become so important today? One reason is the court’s role in high-profile issues that are seeped in ideological overtones — abortion, same-sex marriage, euthanasia, affirmative action, etc. Since the court is a player in the outcomes of these policy areas, interest groups increasingly pursue litigation over legislative strategies to achieve policy goals. Litigation is easier because it does not require lobbying a majority of Congress or, at the state level, 50 state legislatures. Rather, ultimately it means convincing five people — the simple majority of justices. Gaining that simple majority means affecting who sits on the court, which is why interest groups are so invested in nominations today.
But Supreme Court nominations also serve the ends of particular politicians and parties. Since Supreme Court nominations have become high-profile events, they have morphed into symbols of partisanship. Presidents are expected to nominate a candidate who will fulfill the ideological and partisan goals of a party base — be it Republican or Democrat. Votes by senators on Supreme Court nominees are interpreted by strong partisans as support or opposition for the party’s goals.
That’s why votes today on Supreme Court nominees are near party-line votes. Senators are reluctant to buck their party bases when their own re-nomination in the next election may be in jeopardy. Activists, donors, volunteers and partisan voters may punish the senator in the next primary for a stray vote on a nominee. Sen. Jeff Flake of Arizona recently admitted that his effort to broker a compromise with Democrats over an FBI investigation would not have been possible had he been running for re-election.
Has the infusion of ideology improved the nomination process or degraded it? I contend it is the latter. And if the latter, it is time to consider how to lessen its impact on the process before things get even worse.