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As Senate confirmation hearings begin for Judge Ketanji Brown Jackson, President Biden’s nominee to fill Justice Stephen Breyer’s seat on the Supreme Court, Republicans face a clear choice: They can take the high road and return to the tradition of the respectful and smooth confirmation processes that were the rule for most of this country’s history, or they can follow the precedent of much of the 21st century and drag the hearings into the muck.
Historically, the confirmation of qualified justices was almost always a bipartisan sure thing. Over most of the last century, until the 1960s, a large majority of nominees were confirmed by acclamation, in voice votes. (All the information in this article about Senate decisions on Supreme Court nominations, including specifics on votes, comes from the Senate.gov website.)
Even in the 1990s, Justices David Souter, Ruth Bader Ginsburg, and Breyer were confirmed in an overwhelmingly bipartisan manner, 90-9, 96-3, and 87-9, respectively.
Sure, some nominations got contentious. In 1991, Clarence Thomas squeaked through amid sexual harassment allegations. And some 20th century nominees were withdrawn or even rejected. But they were a distinct minority, and their failure to get confirmed usually involved significant problems, including accusations of segregationist views, questionable qualifications, extremist judicial decisions, and even marijuana use.
Over the last couple of decades, though, we’ve seen all-out political warfare erupt over nominees. Instead of confirming any qualified candidate, the new rule seems to be that senators vote against anyone who’s nominated by a president of an opposing party.
That may well happen with Jackson, who's poised to become the first Black woman on the court. Even though the federal appellate court judge unanimously received the American Bar Association’s highest rating of “well qualified,” some Republicans have intensified a barrage against her (The New York Times has a detailed dissection of the attacks). Suffice it to say that some Republican senators seem to be trying to make mountains out of molehills.
Others in the GOP, however, are calling for a “respectful” process. “It’s going to be a fair, thorough hearing, and we’re not going to get in the gutter like the Democrats did,” said Iowa Sen. Chuck Grassley, the top Republican on the Judiciary Committee.
One can only hope.
Why Has the Senate Broken with Historical Precedent?
The simple explanation for the reduction in civility in the Supreme Court nomination process is the general coarseness that exists in the American political dialogue and the widening political divide between the right and left on Capitol Hill and across the country.
More specifically, the slippery slope of knee-jerk opposition to a nominee of the opposing party began with President George W. Bush’s nomination of John Roberts for Chief Justice of the Supreme Court in 2005.
Roberts was eminently qualified, receiving the ABA’s top rating. He was confirmed with a bipartisan 78 votes, but 22 Democrats chose to vote against him for mostly political reasons. Then Minority Leader Harry Reid justified his “nay” vote with fuzzy reasoning, saying Roberts was “a very smart man, but through all of this I came to the realization I’m not too sure his heart is as big as his head.” Huh?
Back then, I hosted “Eye on Chicago,” a public-affairs show at the city’s WBBM-TV. In an on-air editorial, I criticized freshman Illinois Senator Barack Obama for caving into pressure and voting against Roberts. In a statement on the Senate floor, Obama went as far as saying “There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge.” However, Obama then argued he had to vote against Robert’s nomination because he worried about Roberts’ “deepest values,” “core concerns,” “perspectives on how the world works,” and his “empathy.” Translated, Obama disagreed with Roberts’ politics, and he didn’t want to alienate some top Democrats early in his national political career.
Smarting from that, Democrats mounted all-out campaigns against all three of President Trump’s nominees for the court. The Senate confirmed Neal Gorsuch in 2017 in a 54-45 vote, with only three Democrats voting for him. Brett Kavanaugh was confirmed 50-48 in 2018 with no Democrats voting his favor. The same was true in 2020 for Amy Coney Barrett who was confirmed in a party-line 52-48 vote.
Democrats found the Barrett confirmation especially egregious because GOP leaders changed the tune they sang when Garland was nominated and confirmed Barrett little more than a month before a presidential election.
I should also mention that if the Senate had respected tradition, Democrats could have stopped Trump's nominees by filibustering. The problem is that Democrats had exercised the so-called "nuclear option" in 2013. Upset that Senate Republicans were holding up confirmation of Obama judicial and executive branch nominees, then Senate Majority Leader Harry Reid and Senate Democrats changed the rules, allowing a simple majority vote to break a filibuster. As a result, those nominees could effectively be confirmed by a simple majority. When Republicans took back control of the Senate in 2017, they gave Democrats a taste of their own medicine, extending the nuclear option to Supreme Court nominees. That meant a simple majority could confirm a candidate for the court, which is what happened with Gorsuch, Kavanaugh, and Barrett.
What Do the American People Think About Jackson?
Most Americans know very little about Jackson. A Morning Consult/Politico poll found that 28% of those surveyed had heard of but had no opinion about her. Another 31% didn’t even know who she was. However, 46% of respondents believed the Senate should vote to confirm her, while only 17% said it shouldn’t.
A plurality of Americans also favored Jackson’s nomination to the court in a Pew Research Center survey. Pew’s poll found 24% think the Senate should confirm her, while 20% think it probably should. 38% aren’t sure, while only 18% think the Senate should not or probably shouldn’t confirm her.
As is often the case, the American people know better than their leaders.
Republicans and Democrats should conduct respectful hearings, avoiding the smear campaigns and histrionics of some recent confirmation processes, while fully and fairly scrutinizing Jackson’s record. Senators should then vote according to their consciences and the traditional comity that characterized Supreme Court nominations in the past.
It's long past time for the Senate to behave as “the world’s greatest deliberative body,” not as a grouping of political hacks engaged in tit-for-tat grandstanding that panders to the bases of the parties.
If the hearings go smoothly, Jackson should be confirmed in healthy bipartisan vote. Not only because she deserves it, but also because it can help halt this century's descent into demagoguery on Capitol Hill.
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Cover photo: Judge Ketanji Brown Jackson, President Biden's nominee for Associate Justice to the Supreme Court, is seen in the U.S. Capitol between meetings, on Wednesday, March 16, 2022. (Tom Williams/Getty Images)