- Democrats and Republicans have long jousted over the Supreme Court nomination process.
- However, as the Ketanji Brown Jackson hearings demonstrated, confirmations have become sharply polarized in recent years.
- The prospect of court nominees being routinely blocked to stymie a president would impair the judiciary.
In late February, President Joe Biden introduced a prolific moment in US history; for the first time in US history, a Black woman would be nominated to the Supreme Court.
Ketanji Brown Jackson — a former public defender and judge on the influential Court of Appeals for the District of Columbia Circuit — had long been rumored as a top candidate in the event of a retirement or vacancy on the high court. She possessed the sterling credentials of many of the sitting justices, including an Ivy League law degree and a federal judgeship — and her groundbreaking nomination energized Democrats during a time when some of the party’s most ambitious legislative items had faltered.
While Democrats sought a bipartisan vote on Jackson’s nomination, many Republicans — still relitigating the confirmation proceedings of previous conservative nominees — made last month’s hearings a proxy on the nation’s cultural fault lines.
Throughout the scrutiny of Jackson’s record, race, criminal justice, and gender dynamics were used as a cudgel by many Judiciary Committee Republicans as they sought to throw Jackson off-balance despite her largely positive reception from the American public.
Republican Sen. Lindsey Graham – who had previously voted to confirm Sonia Sotomayor and Elena Kagan to the Supreme Court despite being nominated by Democratic President Barack Obama — backed Jackson’s appointment to the District of Columbia appeals court last year, but was in no such mood to back her elevation to the high court.
“The Supreme Court is different from the circuit court,” the South Carolina lawmaker said in explaining his vote against Jackson on the Judiciary Committee panel earlier this month, adding that she was an “activist to the core.”
Enter the newest stage of the nation’s escalating judicial wars.
The ‘Bork’ effect
When then-President Ronald Reagan nominated Robert Bork to the Supreme Court in July 1987, the selection of the former Solicitor General and judge on the Court of Appeals for the District of Columbia Circuit was lauded by conservatives.
However, the nomination immediately hit turbulence.
The same day as Reagan’s announcement, then-Sen. Ted Kennedy of Massachusetts took to the Senate floor to criticize Bork’s judicial philosophy. The appeals court judge was an adherent of “strict constructionism,” which limits the interpretation of constitutional language to that explicitly stated by the framers.
“Robert Bork’s America,” the senator said in a speech, “is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government.”
Kennedy’s withering indictment was rooted in Bork’s onetime opposition to the Civil Rights Act of 1964 — which banned racial discrimination in public accommodations — and spread to his skepticism of gender-discriminatory laws.
The hearings were arduous, and Bork was eventually rejected by the full Senate in a 58-42 vote. Six Republicans joined 52 Democrats — including then-Judiciary Committee Chairman Biden — in opposing the nomination, in what was a stinging setback to conservatives. And they never forgot it.
Carl Tobias, a professor at the University of Richmond School of Law, said that the Bork proceedings continue to shape how Republicans approach high court vacancies.
“It has an enormous impact on the Republican side. They think that was it — that’s when they were going to have a majority of conservatives on the Supreme Court,” he told Insider. “And they were right. That would’ve made a big difference. I think the Democrats just played the politics well, even if it wasn’t fair to Bork. But Bork did himself in too, to some extent. I think he completely misread what was going on. He just didn’t get the whole public politics of it all.”
A brewing storm
Until recently, Supreme Court nominees traditionally received lopsided Senate confirmation votes.
In 1986, Antonin Scalia was confirmed 98-0; Anthony Kennedy received a 97-0 vote in 1988; David Souter was approved 90-9 in 1990; Ruth Bader Ginsburg was confirmed 96-3 in 1993; and Stephen Breyer was approved 87-9 in 1994.
After conservative jurist Clarence Thomas was accused of sexual harassment by law professor Anita Hill during his 1991 Supreme Court confirmation hearings, he sharply refuted the claims and said that the proceedings had devolved into a “high-tech lynching.” He was narrowly confirmed, 52-48.
In more recent decades, John Roberts was confirmed 78-22 as chief justice in 2005, while Samuel Alito was approved 58-42 as an associate justice in 2006. In 2009, Sonia Sotomayor was confirmed 68-31, while Elena Kagan was approved 63-37 the next year.
In November 2013, Senate Democrats set aside the 60-vote filibuster threshold that previously applied to lower court nominees and presidential Cabinet nominations, while keeping it in place for Supreme Court nominees. Republicans, who had blocked multiple Obama appeals court nominees from being confirmed, found themselves unable to block most Democratic nominees after the new rules were put into place.
However, after the GOP retook control of the Senate in January 2015 and following the February 2016 death of Scalia during the last year of Obama’s presidency, then-Senate Majority Leader Mitch McConnell of Kentucky dramatically slowed judicial confirmations.
Now-Attorney General Merrick Garland, who at the time was Obama’s pick to replace Scalia, was denied a Senate hearing and a vote, with Republicans pledging to leave the court vacancy open for the next president. Democrats have fumed over Garland’s treatment since.
Once Donald Trump entered the White House, the Republican-controlled Senate confirmed Neil Gorsuch (54-45), Brett Kavanaugh (50-48), and Amy Coney Barrett (52-48) to the court over the protestations of most Democrats.
Kavanaugh’s tense 2018 confirmation hearings featured the testimony of Christine Blasey Ford, a research psychologist who accused the then-appeals court judge of sexual assault decades earlier — in what Graham at the time decried as “wholesale character assassination.” The judge denied the accusations and was confirmed with near-unanimous GOP support and only one Democratic vote, which came from Sen. Joe Manchin of West Virginia.
Barrett — who was nominated to replace Ginsburg after the liberal justice’s death only weeks before the 2020 presidential election — did not receive any Democratic votes, with the lawmakers incensed by the speedy timeline that McConnell set in confirming her to the court.
‘They clearly raised her right’
Since Biden took office last year, Democrats have confirmed federal judges in a rapid clip, angling to make up for their past missteps in shaping the judiciary. Diversity has been a major priority; roughly 67% of the president’s confirmed federal judicial nominees have been nonwhite — with 31% of all confirmed nominees being Black, based on data from the Federal Judicial Center.
For Democrats, Jackson’s nomination was supposed to cap off Biden’s efforts to elevate the first Black female jurist to the highest court in the land, sans the sharp polarization of past hearings. That did not come to pass.
Graham used his questioning time to pick apart Jackson’s record on sentencing for child pornography offenders, which many Republicans said was too lenient because she imposed lighter sentences than the federal guidelines in several cases. Fact-checkers and legal experts debunked the claims, saying they lack key context and data which show that Jackson’s conduct was within the mainstream and that the guidelines were outdated.
Republican Sen. Ted Cruz of Texas prodded Jackson about critical race theory, an academic discipline that examines how the legacy of racism continues to reverberate through laws and policies that exist today. He then pulled out the book “Antiracist Baby,” written by the author and antiracist scholar Ibram X. Kendi, to ask if she thought that babies were racist. With a sigh that was uncharacteristic for Jackson during the hearings, she said that no child “should be made to feel as though they are racist or not valued, or less than.”
Shortly before Jackson’s full Judiciary committee vote, Graham warned Democrats that she would not have received a hearing had Republicans controlled the Senate, citing the need for a more “moderate” candidate. And McConnell remains mum on whether he would even consider a future Biden high court nominee in a GOP-controlled Senate.
“I just wonder what it’s going to take to stop the downward spiral,” Tobias told Insider. “I don’t know what it is. I think the prediction — and I think it’s right — is if something isn’t done, it means that the only time you can be able to confirm a Supreme Court nominee is when the person in the White House has a Senate majority of the same party. All of this is bad for the president, bad for the Senate, and bad for the courts in terms of the public perception — to the extent the public cares.”
In the end, Jackson was confirmed in a 53-47 vote, with the support of all 50 Senate Democrats and three Republicans — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah. She was not a highly-controversial nominee, and yet three GOP votes were seen as a breakthrough in the current political environment.
Many Republicans — including retiring Sen. Roy Blunt of Missouri — praised Jackson’s legal acumen, but said they still could not support her nomination, citing her “judicial philosophy” or an inability to pin down what her philosophy would resemble.
Sen. Thom Tillis of North Carolina, who was cordial in his questioning of Jackson during the Judiciary committee hearings, remarked that he was “impressed” by her knowledge and character.
“I got an opportunity during one of the breaks to go up to her parents, and I told them that they clearly raised her right,” he said before the full committee vote earlier this month. “They should be very proud.”
He then proceeded to vote against her confirmation.