What Happened to Supreme Court Confirmations?
Politicizing the Process Is Wrong & Court-Packing Will Make It Worse
Every Republican who argued against filling a Supreme Court vacancy during the 2016 election season is now attempting to explain why the situation in 2020 is materially different than it was four years ago. Unsurprisingly, this has led to much controversy and accusations of hypocrisy, especially around Senators like Lindsey Graham who promised not to fill a Supreme Court vacancy in 2020.
But hypocrisy aside, the Republicans’ decision not to even consider President Obama’s nomination of Merrick Garland in 2016 raised a deeper constitutional controversy about the partisan nature of the judicial confirmation process. It is vital the judiciary remains independent from partisan politics. If the criterion for a nominee’s confirmation is simply a question of whose side they are on, then the judiciary would be nothing but a body of partisans — it would essentially be a second legislature filled with Republicans and Democrats advancing the ideological interests of their respective parties.
The legitimacy of the judicial branch is founded on the claim that it is separated from the fray of politics. Whereas the legislature derives its authority from its direct connection to the people they represent, the judiciary derives its authority from its independence. Two branches of our government are partisan, it is necessary that they are checked by an independent third branch. Without the cooperation of the other two branches, however, the judiciary is powerless: it “has no influence over the sword or the purse . . . and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments” (Federalist №78). Our government bends to the judgment of our courts because their independence gives them legitimacy. A partisan judiciary, on the other hand, lacks such legitimacy and would, by the design of our Constitution, lack the power to compel the other branches to adhere to its rulings.
Through the overtly partisan rejection of Judge Garland’s nomination, Senate Republicans strained the political bands which have connected the American people together as a nation. They have decreased the legitimacy of the judicial branch and increased the likelihood that its rulings will be ignored.
This is not to say the Democrats have been any better at keeping partisanship away from the judicial confirmation process, on the contrary. In 1987, President Ronald Reagan nominated Judge Robert Bork because of his originalist judicial philosophy. Senate Democrats, including then-Senator Joe Biden, used Bork’s judicial philosophy to call him anti-black and anti-woman. Since then, judicial confirmations have been fairly partisan with the Democrats and Republicans opposing each other’s nominees; but the Democrat’s use of the nuclear option in 2013 paved the way for the most partisan judicial nominations we have seen in recent history.
The nuclear option revokes a cloture rule requiring sixty senators to limit debate time; without cloture, any senator could use their unlimited debate time to filibuster — to hold up the proceedings and prevent a vote. This effectively meant that sixty votes were necessary to confirm a judge or justice. But a simple majority could change the cloture rule if it wanted to; however, doing so was known as the “nuclear option” because if one party changed the rule to confirm their preferred judge or justice, then the other side would certainly retaliate by doing the same (like mutually assured destruction in a nuclear war).
Since adopting the cloture rule in 1917, neither party resorted to using the nuclear option until 2013 when fifty-two Democrats exercised it to overcome Republican efforts to prevent President Obama from filling three vacancies on the D.C. Circuit Court of Appeals. The Republicans were powerless to stop them but they “vowed to reciprocate if they reclaim[ed] the majority.” They did reclaim the majority and they did reciprocate. By employing the nuclear option, Democrats “quickly filled those three D.C. Circuit vacancies . . . [and] confirmed 89 judges [in 2014], twice the annual average and the third-highest annual total in history.” But in doing so, they eliminated their ability to stop Trump from filling three Supreme Court vacancies. They have traded short-term victory for long-term defeat and they could do so again if they “pack the Court” since Republicans would certainly retaliate in turn.
Court-packing is a proposal to increase the number of Supreme Court justices so that one party may fill them with nominees of their own choosing. In response to the Republicans’ decision to push through a judicial confirmation with less than two months until the election, Democrats have shown openness, and in some cases support, for this policy (see Schumer, C.; Markey, E.; Nadler, J.; Kennedy, J.; Ocasio-Cortez, A.; etc.). But in 2019, Justice Ginsburg herself declared her firm opposition to court-packing saying it “would make the court look partisan.” As explained above, partisanship erodes judicial independence.
The political bands connecting Americans have already been strained and court-packing would surely break them. If Democrats pack the Court, then Republicans will certainly do the same. Our Constitutional system would break apart — the judicial branch as we know it would disappear, it would become nothing more than a rubber stamp for whichever party holds power.
Bringing the nation to the brink for every Supreme Court nomination only enhances the partisan nature of the process and, as a result, decreases the legitimacy of the Court as an impartial institution. With the cloture rule in place, moderate members of the minority party would have a chance to object to partisan nominations and, since majorities change, this system would benefit both sides. Democrats lost their voice in three Supreme Court confirmations because they started the nuclear option war and Republicans should be content having chosen three justices; therefore, no matter who wins in November, it would be wise for the Senate to reject court-packing schemes and return to using the cloture rule for judicial confirmations.
Requiescat in pace, Justice Ginsburg.
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