With the nomination of Judge Ketanji Brown Jackson to the United States Supreme Court came a central focus on the historic nature of her nomination, and deservedly so. Jackson is an eminently qualified and fair judge who will help to shape the court into a more representative portrayal of the American public as the soon-to-be-first Black female justice in the court’s history.
The praise was wide-ranging, and in hearings, press releases and informal Senate hall gaggles, a bipartisan consensus among senators emerged to laud Jackson’s qualifications, her unique perspectives, accomplishments and job as a mother. The descriptions of Jackson as a person were indistinguishable between the left or the right. Many going off of just these statements would be left expecting a wide bipartisan vote of approval. Yet, as quickly became obvious, this would not be the case.
Just three Republicans supported Jackson: Sens. Lisa Murkowski, R-Alaska, Susan Collins, R-Maine, and Mitt Romney, R-Utah. The reasoning for the discrepancy? Some Republicans pointed to what they errantly felt was a unique history of under sentencing offenders in child porn cases, but for many, it came down to “judicial philosophy.”
Once rarely considered, if not looked past, judicial philosophy has, unfortunately, become the paramount barometer for whether one can expect a senator to support a nominee. Though on its face the term refers to “the underlying set of ideas and beliefs of a particular judge or justice which shapes his or her rulings on particular cases,” practically speaking, it usually means something to the effect of “if you aren’t going to vote the way I want in highly charged cases, I’m not going to support your confirmation.”
As Sen. Chuck Grassley, R-Iowa, correctly noted, historically, Supreme Court nominations featured a “model of deference if a nominee was qualified, excluding consideration of their philosophy.” It is inarguable this model has now become a relic of the past, and how we got to this point is important to understand. Republicans like to say it’s a cause only of Democrats’ making, while Democrats inherently argue the exact opposite. The reality is, neither is true, with both parties at least in part at fault for the seemingly exponential increase in partisan hackery featured within the process.
From a more recent lens, the moves are often an escalating game of tit for tat. The late Sen. Harry Reid, D-Nev., notably invoked the nuclear option in 2013 by eliminating the 60-vote threshold required for judicial nominees, except for those to the Supreme Court. Four years later, Republicans would use this to explain their reasoning for gutting the threshold for Supreme Court nominations, when it became clear Judge Neil Gorsuch was not going to garner the support needed from Democrats.
The gravest consequences have often resulted from decisions made by Sen. Mitch McConnell, R-Ky., who flagrantly disregarded all norms and recklessly held open a vacant seat for almost a year under the made-up guise that nominees shouldn’t be approved in a presidential election year. Just four years later, McConnell and Senate Republicans did just that and worse by rushing through Amy Coney Barrett in under two months right before a presidential election.
And if the Trump years did not illustrate where the process was going enough, with all of the aforementioned events taking place and Democrats almost unanimously voting against three highly qualified judges, Judge Jackson’s nomination certainly did. Republicans have said it themselves, as Democrats have in the past: The nominee put forth has every quality to be expected of a Supreme Court justice, but she simply lacks the 19th century judicial ideology they prefer. For example, Sen. Lindsey Graham, R-S.C., who had never voted against a Supreme Court Justice in his tenure in the Senate, voted down Jackson even though he had supported her for a prior appointment.
Though it’s obvious Graham is no longer the McCain-esque figure he once was — now a Trump stooge willing to do whatever for his party and brand — he has historically been known for his deference to presidents on judicial appointments. And as Sen. Chris Coons, D-Del., recently admitted, much to the chagrin of some bad-faith Democrats, Graham warned Democrats that voted against Gorsuch based on philosophy — which Graham had put aside with his support of Justices Elena Kagan and Sonia Sotomayor — that he would be sure to return the favor and prioritize judicial philosophy.
When you lose people like Lindsey Graham on the matter, you begin to run out of people willing to give deference to qualified presidential appointees, as has been the norm for the majority of this country’s past. And of the three who did go across the aisle, one may very well be ousted by year’s end by a primary challenger who almost certainly would not give that same deference.
The exponential polarization of the process, in conjunction with changing viewpoints on what qualifies as an acceptable nominee, does severe damage to the institution. The difference between appointed judges and their political ideologies is now so thinly veiled that at this point it’s awkward to watch parties pretend their preferred candidate “isn’t partisan.” Supreme Court hearings have turned into a sham, with senators calling each other out for using the highly watched process as a presidential campaign launching ground as opposed to a venue for intense deliberation.
Somehow, the future ahead looks even bleaker. Republicans are favored to take back the Senate in this year’s midterms, and if they do, a potential second Biden nominee would have ill-fated chances. Republicans have openly admitted they would not give the nominee a vote in 2024, and by refusing to answer questions on the matter, have more or less made Democrats presume that a vacancy would even be held open in 2023.
If that were to happen, the precedent would be set, and Democrats would not only follow it but likely continue the tit-for-tat game by going one step further. On the path that has been charted as of late, it is reasonable to expect that by a decade from now, the only way a SCOTUS nominee sees a vote is if their party is in control of not only the presidency, but the Senate as well.
This possibility has grave consequences, as an odd-numbered court could now turn to an even eight, resulting in deadlocked cases for the years that the seat is held open. This would surely cause a chaotic uproar, and by that point policies like court-packing may seem relatively mundane.
The sad fact of the matter is that as a result of both parties’ actions, some senators more than others, the Supreme Court nomination process will only continue to sink lower and lower into the depths of partisan polarization. Partisan polarization makes efficient government in this enormous and pluralistic country almost impossible. The tit-for-tat game will escalate to the point that norms become nonexistent, the highest court in the land may be free of justice for years on end and any remaining veil of political independence will have vanished.
Devon Hesano is an Opinion Columnist & can be reached at email@example.com