Supreme Court justice confirmations are too political.
Let’s be real for a moment. Almost everything that happens in Congress is political, and as we grow ever more divided politically I don’t think that will ever change. But there was a time when politicians could mostly agree on one thing: Supreme Court justices. If you go back not too far in time to the year 1993, Bill Clinton’s justice nomination of Ruth Bader Ginsberg (perhaps you’ve heard of her) passed in a very close 96-3. You thought that was controversial, Antonin Scalia’s confirmation passed in an even tighter 98-0.
Yep, back in the day, most justices were confirmed with a typical vote having more than 60 senators in favor of the confirmation. From the Nixon administration to the Obama administration, every confirmed Supreme Court justice has been confirmed with over 60 voting in favor with the exception of Clarence Thomas. Confirmation used to be much more bipartisan. Senators from both sides of the aisle came together and confirmed all sorts of justices. More conservative justices received votes from Democratic Senators and liberal justices received support from Republicans Senators. And before the Nixon administration, Justices could be confirmed by a simple voice vote.
Understandably, the political climate has changed drastically, but why are Supreme Court Justice nominations so political. Each party wants its style of interpretation, but does that discredit other styles of interpretation? Look at Amy Coney Barrett. She is a self-described originalist. She is a highly qualified justice with plenty of experience in the courts to justify her nomination to the Supreme Court. Ruth Bader Ginsburg believed in a living constitution. A living constitution is very different from an originalist interpretation, but both Ruth Bader Ginsburg and Amy Coney Barret were confirmed to the Supreme Court. Why? Because they are both qualified to sit on the bench.
There is a reason the Supreme Court has nine justices. There are different ways to interpret the constitution and interpret laws. Our founding fathers recognized this and made sure that the power of the Supreme Court did not fall into the hands of one person. Similarly, the founding fathers recognized that the ability given to the Supreme Court should not be influenced by political partisanship. This is the reason justices serve a life tenure while acting in “good behavior.” Preventing justices from being influenced by pressure from the public, Congress, or the president is vital to the integrity of the courts.
Even though the Supreme Court isn’t supposed to be political, politicians encourage the politicization of the courts. I think Justice Sotomayor said it best: “The more partisan the voting becomes, the less belief that the public is likely to have that Congress is making a merit-based or qualifications-based assessment of judicial nominees.” We can disagree with Justices’ interpretation styles but does that make a justice not qualified to sit on the court? During the Ketanji Brown Jackson hearings, it was made well known that Judge Jackson’s interpretation style was not one that Republican Senators liked, but did that make her wrong or incorrect?
Justices should be confirmed based on their merit, not based on their interpretation style. The president is given the sole power to nominate a Justice to the Supreme Court. It is solely up to the president who their nomination will be; this power isn’t given to the Legislature. But the Senate continues to vote as though it’s their nomination, that they should be the ones deciding. The Senate is no longer confirming a nomination, but voting to choose their own Justice. Ever since the Merrick Garland nomination, the Senate has continued to vote across party lines and continues to make each confirmation more and more political. There should be very little reason a Justice nomination shouldn’t be confirmed and not agreeing with one’s interpretation style isn’t one of them.
Unfortunately, due to the political climate of 2022, I don’t see the Senate changing its ways. The Senate will continue to make Justice nominations political and the apolitical nature of the Supreme Court will continue to deteriorate. Americans will begin to think of the Supreme Court as another policymaker instead of the interpreters of the Constitution and of the laws which Congress rights. The Senate must uphold the integrity of the Supreme Court or the integrity of the Courts may be lost.