The battle to confirm Brett Kavanaugh in the fall of 2018 showed that the Supreme Court is now part of the same toxic cloud that envelops all of the nation’s public discourse. Ironically, Kavanaugh was nominated in part because he was thought to be a safe pick, with a long public career that had been vetted numerous times. He was firmly part of the legal establishment, specifically its conservative mainstream, and had displayed a political caginess that still make some on the right worry that he’s too much like John Roberts rather than Antonin Scalia or Clarence Thomas.
As it turned out, of course, 11th-hour sexual assault allegations transformed what was already a contentious process into a partisan Rorschach test. All told, Kavanaugh faced a concerted opposition campaign unlike any seen since Robert Bork in 1987.
Senate Democrats had warned President Ronald Reagan that nominating Bork to the Supreme Court would provoke a fight unlike any he had faced, even after Scalia had been confirmed unanimously the year before. And so, on the very day that Reagan announced Bork as his pick, Ted Kennedy went to the Senate floor to denounce “Robert Bork’s America,” a place that featured a truly horrible parade.
It went downhill from there, as the brusque Bork refused to adopt the now-common strategy of talking a lot without saying much. A few years later, Ruth Bader Ginsburg refined that into a “pincer movement,” refusing to comment on specific fact patterns because they might come before the court, then refusing to discuss general principles because “a judge could deal in specifics only.”
Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on Supreme Court nominations until 1916. So is the toxicity all about TV and Twitter, the 24-hour news cycle and the viral video? Is it that legal issues have become more ideologically divisive?
No, the confirmation process hasn’t changed beyond the framers’ recognition, and political rhetoric was as nasty in the 1820s as it is in the 2020s. All these parts of the current system that we don’t like are symptoms of a larger phenomenon: As government has grown, so have the laws that courts interpret, and their reach over more of our lives. Modern confirmation battles are all part of, and a logical response to, political incentives. When judges act as super-legislators, the public wants to scrutinize their ideologies.
What’s supposed to be the most democratically accountable branch has been avoiding hard choices since long before the current polarization.
The imbalance between the executive branch and Congress has made the Supreme Court into the decider of both controversial social issues and complex policy disputes. Congress doesn’t complete its work and instead passes the political buck to a faceless bureaucracy, and to a judiciary that has to evaluate whether what these alphabet agencies come up with is within spitting distance of what the law allows. What’s supposed to be the most democratically accountable branch has been avoiding hard choices since long before the current polarization.
Is there anything we can do to fix this dynamic, to turn down the political heat? Reform proposals abound: term limits, changing the size of the court, not having permanent justices but a rotating cast of circuit judges, setting new confirmation rules and more. At the tail end of the 2020 presidential campaign, Joe Biden pledged to appoint a bipartisan commission to consider reforming the Supreme Court “because it is getting out of whack,” although he hastened to add that “it’s not about court-packing.”
In April 2021, he followed through on that promise — and the commission dutifully held hearings and produced a 294-page report that diligently covered relevant issues but studiously avoided making policy recommendations. Indeed, it couldn’t have given any consensus advice because of clear divisions that quickly became apparent: The left-leaning professors didn’t always agree with what the far-left activists wanted, and two of the more conservative members resigned before the final product was delivered.
In the end, all this reform talk boils down to rearranging the deck chairs on the Titanic — which vessel isn’t the appointment process, but the ship of state. The fundamental problem we face is the politicization of the product, not of the process. If nominations were depoliticized, that would likewise depoliticize the exercise of judicial power. But the only way confirmations will be detoxified, and the only way we reverse the trend where people see Trump and Obama judges, is for the court to make itself less important by returning decision-making power to legislators — rather than bureaucrats — and the people in their respective states.
Opportunities of obstruction
Ultimately, judicial power is not a means to an end, but an enforcement mechanism for the strictures of a founding document intended just as much to curtail the excesses of democracy as to empower its exercise. In a country ruled by law, and not men, the proper response to an unpopular legal decision is to change the law or amend the Constitution. Any other method leads to a sort of judicial abdication and the loss of those very rights and liberties that can only be vindicated through the judicial process. Or to government by black-robed philosopher kings — and, as Scalia liked to say, why would we choose nine lawyers for that job?
Party-line votes for Supreme Court nominations are unhealthy for the republic and suggest that nobody can now be confirmed during divided government. But that unfortunate dynamic is unsurprising at a time when the judiciary is all-powerful and justices have contrasting jurisprudential theories that track party preferences.
Although the confirmation process may not have always been the spectacle it is today, nominations to the high court were often contentious political struggles. For the republic’s first century, withdrawn and postponed nominations, or those upon which the Senate failed to act, were a regular occurrence.
In the end, all this reform talk boils down to rearranging the deck chairs on the Titanic.
More recently, there’s Merrick Garland, the first nomination the Senate allowed to expire since 1881 — but then the last time a Senate controlled by the party opposite the president confirmed a nominee to a vacancy arising in a presidential election year was 1888.
As we now know, Senate Majority Leader Mitch McConnell’s gamble worked: Not only did it not hurt vulnerable senators running for reelection, but the vacancy held Republicans together and provided the margin for Donald Trump in key states. Trump then rewarded his electoral coalition with the nomination of Neil Gorsuch, who was confirmed only after the Senate decided, on a party-line vote, to exercise the “nuclear option” and remove filibusters.
Opportunities for obstruction have continued — pushed down to blue slips, cloture votes and other arcane parliamentary procedures — even as control of the Senate remains by far the most important aspect of the whole endeavor. The elimination of the filibuster for Supreme Court nominees was the natural culmination of a tit-for-tat escalation by both parties.
More significantly, by filibustering Gorsuch, Democrats destroyed their leverage over future, more consequential vacancies. Moderate Republican senators wouldn’t have gone for a “nuclear option” to seat Kavanaugh in place of Anthony Kennedy, but they didn’t face that dilemma. And they again didn’t face it when Trump got the chance to replace Ginsburg so close to the 2020 election, which heralded an even bigger jurisprudential shift.
Given the battles we saw over Gorsuch, Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson, too many people think of the justices in partisan terms. That’s really too bad, but not surprising when contrasting methods of constitutional and statutory interpretation now largely track identification with parties that are more ideologically sorted than ever.
Senatorial brinksmanship is symptomatic of a larger problem: the courts’ self-corruption, aiding and abetting the expansion of federal power, and then the shifting of that power away from the people’s legislative representatives and toward executive-branch administrative agencies. The judiciary affects public policy more than it ever did — and those decisions increasingly turn on the party of the president who nominated the judge or justice.
That’s why the public increasingly sees the court as political. Hand-wringing over the court’s “legitimacy” is both overwrought and partisan — the court is still respected more than most institutions at a time of lower societal trust overall — but there are lessons to be drawn from our long sweep of confirmation battles.
First, politics has always been part of the process. Presidents have long tried to find people in line with their own political thinking. Look at the judicial battles of John Adams and Thomas Jefferson, with the Midnight Judges Act — the original court-packing. When nominees got to the Senate, they faced another gauntlet, particularly when the president’s party didn’t have a majority.
Historically, the Senate has confirmed fewer than 60 percent of Supreme Court nominees under divided government, compared to about 90 percent when the president’s party controlled the Senate. Timing matters too: Over 80 percent of nominees in the first three years of a presidential term have been confirmed, but barely more than half in the fourth (election) year.
Second, confirmation fights are now driven by judicial philosophy. To a certain extent, the politicization of appointments has always tracked national political divisions. But the reasons for such controversies are now largely unprecedented. Pre-modern disputes tended to revolve around either the president’s relationship with the Senate or factors like geography and patronage. That dynamic is markedly different from what we see today. Ideological litmus tests cause more of a problem than past criteria. With the parties adopting incompatible judicial philosophies, it’s impossible for a president to find an “uncontroversial” nominee.
The entire reason candidate Trump released his list of Supreme Court potentials was to convince Republicans, as well as cultural conservatives who may otherwise have stayed home or voted Democrat, that he could be trusted to appoint the right kind of judges. This was a real innovation, and we could see lists become standard practice, even if candidates from the two parties might use different criteria for shaping them, with more concern for demographic representation from Democrats.
Third, hearings have become Kabuki theater. Public hearings have only been around for a century and weren’t regular practice until the 1950s, when they became an opportunity for Dixiecrats to rail against Brown v. Board of Education. Otherwise, they were perfunctory discussions of personal biography. John Paul Stevens, the first nominee after Roe, wasn’t even asked about that case. Things changed in the 1980s, not coincidentally when the hearings began to be televised. Now all senators ask questions, but nominees largely refuse to answer, creating what Elena Kagan once called a “vapid and hollow charade.” The nominees speak in platitudes: Roberts and his judicial umpire, Sonia Sotomayor saying that fidelity to the law was her only guidepost, Kagan accepting that “we’re all originalists now.”
After the fiascoes that were the Barrett and Jackson hearings — the nominees coming out unscathed as senators from both sides collected video clips for their political campaigns — maybe we should get rid of hearings altogether. They’ve served their purpose but now inflict greater cost on the court, Senate and rule of law than any informational or educational benefit. Given the voluminous and instantly searchable records nominees have these days, is there any need to subject them, and the country, to a public inquisition? At the very least, the judiciary committee could sit entirely in closed session.
Senatorial brinksmanship is symptomatic of a larger problem: the courts’ self-corruption, aiding and abetting the expansion of federal power.
Fourth, every nomination can have a significant impact. The actual hearings, and the confirmation spectacle more broadly, have very little to do with being a justice. As former White House counsel Don McGahn put it, “it’s a Hollywood audition to join a monastery.” After all the nomination hoopla, the Supreme Court is still a court, albeit with a new composition that affects both internal dynamics and external results. Not all historically significant cases would’ve turned out differently if a single justice were replaced, but some would have. And not simply by changing the party of the president making the appointment. Until very recently — last term, really — we’d gotten used to various justices serving as swing votes.
But another reason why filling each vacancy is such a big deal is that justices now serve longer. In the late 1700s, when life expectancy was under 40 — skewed by infant mortality, of course — the average age of a Supreme Court nominee was about 50. In the last few decades, when life expectancy is just under 80, the average age of a Supreme Court nominee is still about 50. In the last half-century, only one justice was over 55 at confirmation: Ginsburg.
To put it another way, before 1970, the average tenure of a justice was less than 15 years. Since then, it’s been more than 25. Thomas, who was 43 when appointed and has already served more than 30 years, could serve another decade!
Fifth, the hardest confirmations come when there’s potential for a big shift. In addition to divided government, the most contentious nominations are those that threaten to change the court’s jurisprudence. Replacing the centrist Lewis Powell with the conservative Bork provoked a firestorm, but putting another moderate (Kennedy) in that seat was easy. Would Kavanaugh or Barrett have faced such strong opposition had they been nominated for Thomas’ seat? Wouldn’t Biden have faced a bigger battle if he were replacing Samuel Alito rather than Stephen Breyer?
At base, the reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse and pluralistic country. Let federal legislators make the hard calls about truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Florida be Florida, California be California, and Utah be Utah. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court,” on which this essay is based. He also writes the Shapiro’s Gavel Substack newsletter.
This story appears in the March issue of Deseret Magazine. Learn more about how to subscribe.