The Politicization of Supreme Court Confirmations

For better or for worse, Brett Kavanaugh is now a household name. The ugly and arduous month-long confirmation process has changed the dynamic of the Supreme Court and follows a recent pattern that shows that Supreme Court nominations are becoming increasingly more partisan affairs. But what is the effect of this increasing politicization and how did we get here? Since the 1980s, American politics has become increasingly more polar. The two major parties in Congress have formed two distinct clusters on either side of the political spectrum. The Republicans have become increasingly more conservative and the Democrats have become more liberal (Voteview). These clusters create an ideological void in the center that makes it more difficult for the parties to agree on matters and create effective bipartisan policy. Periods of polarizations are not uncommon in American politics. We see a period of polarization comparable to today's standards at the turn of the 20th century (Voteview). We must consider the impact that polarization has on Congress and politics. Mann & Ornstein describe the effect of polarization in It's Even Worse Than It Looks by using excerpts from a retired Republican congressional staffer who wrote: During periods of political consensus, for instance, the World War II and early post-war eras, the Senate was a 'high functioning' institution: filibusters were rare and the body was legislatively productive. Now, one can no more picture the current Senate producing the original Medicare Act than the old Supreme Soviet having legislated the Bill of Rights. Far from being a rarity, virtually every bill, every nominee for Senate confirmation and every routine procedural motion is now subject to a Republican filibuster. Under the circumstances, it is no wonder that Washington is gridlocked: legislating has now become war minus the shooting. (Mann&Ornstein 54-55).

Polarization creates this hostile political climate where Congress is less efficient. The goal of the opposition becomes being as disruptive as possible to the majority. This creates political gridlock and undermines the authority of Congress. While Congress is afflicted by polarization, the Supreme Court is isolated from the political strife that originates on Capitol Hill. It must be said that the Supreme Court is not fully apolitical. Presidents have an incentive to nominate justices that align with their political views and justices must be confirmed by the Senate to serve. The confirmation process serves as a check on the presidency and should protect the Supreme Court from detrimental nominees. For most of our history, nominees that are successfully confirmed receive a large majority bipartisan votes with oppositions votes being in the single digits. Recently, this trend has taken a reversal. We see this reversal starting with the 1991 confirmation of Clarence Thomas who was nominated on a four-vote margin. Since then, confirmation votes have become more contested and opposing votes have grown significantly with the most recent vote being within a two-vote margin (Senate). Polarization is now having a significant impact on these confirmation votes. Our political culture has shifted to being disruptive to the other side, rather than trying to make a compromise. The once sacred confirmation process is now being used as a tool to get back at the other party and this sets a bad precedent going forward. If the goal of the opposition party is to reject a nominee because of their political affiliation, rather than their qualifications or their testimony, then many qualified judges will be unable to reach the Supreme Court. If this happens, vacant spots won't be filled and, as Walker writes, ...the administration of justice is impeded, (Walker).

A recent example of this would be of Neil Gorsuch (Trump nominee) and Merrick Garland (Obama nominee). Both received a well qualified rating from the American Bar Association (Conway et al) but Garland wasn't given the opportunity for a confirmation hearing by the Republican majority Senate (Vogue). Gorsuch was confirmed by a nine-vote margin despite being respected by many Democrats (Senate). These cases show how the confirmation process is becoming more politicized and how qualified candidates are facing significant resistance. This ultimately harms the Supreme Court, and America, in the long run. Brett Kavanaugh's confirmation is the latest and arguably most politicized nomination to the Supreme Court and shows us the dangers of a politicized confirmation process. Massive protests in front of the Supreme Court, a hearing turned into a screaming match, multiple sexual misconduct allegations presented by the opposition, Democrats vowing to impeach a newly confirmed Supreme Court justice. The list of tensions goes on but this level of ideological clash and the slimmest confirmation vote in American history is unprecedented for a Supreme Court nomination. Kavanaugh's confirmation ordeal serves as a lesson to America. If political polarization continues to affect the confirmation process, then the integrity of the Supreme Court and our democracy is in danger.

Bibliography

1. Conway, Madeline, et al. Bar Association Gives Gorsuch Its Best Rating. POLITICO, 10 Mar. 2017, www.politico.com/story/2017/03/neil-gorsuch-american-bar-association-rating-235924.
2. Mann, Thomas E., and Norman J. Ornstein. It's Even Worse Than It Looks. Pg 54-55. Basic Books, 2016 Supreme Court Nominations: Present-1789. U.S. Senate: Supreme Court Nominations: Present-1789, 6 Oct. 2018, www.senate.gov/pagelayout/reference/nominations/Nominations.htm#top.
3. Vogue, Ariane de. How McConnell Won, and Obama Lost, the Merrick Garland Fight. CNN, Cable News Network, 9 Nov. 2016, www.cnn.com/2016/11/09/politics/merrick-garland-supreme-court/index.html.
4. Voteview, Parties Overview & Congress DW-Nominate Plot , voteview.com Jr., John M. Walker. The Unfortunate Politicization of Judicial Confirmation Hearings. The Atlantic, Atlantic Media Company, 9 July 2012, www.theatlantic.com/national/archive/2012/07/the-unfortunate-politicization-of-judicial-confirmation-hearings/259445/

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