The process of confirming Supreme Court nominees has become far too politicized. And today, the Senate made it worse. Please note — that’s “the Senate,” not “Republicans” or “Majority Leader Mitch McConnell.” The politicization of the court began many years ago, and its roots run deep and broad. It reflects the increasing determination of presidents and their allies in Congress to nominate judges who won’t surprise them on the court, as well as the growing role of interest groups that want to impose litmus tests on nominees to make sure they’ll get the rulings they want.
For those who spent the morning on Mars, 44 Senate Democrats voted against the motion to shut off debate on the nomination of Judge Neil M. Gorsuch for the Supreme Court. Under Senate rules, that was enough to keep the filibuster going. But then McConnell used some procedural jujitsu to allow the chamber’s 52 Republicans to change those rules by a simple majority vote (instead of the usual two-thirds), eliminating the possibility of a filibuster on Supreme Court nominees.
For the record, my colleagues on the editorial board have opposed the filibuster in all its iterations for many years, in both Republican- and Democrat-controlled Senates. I’ve always dissented from that position; I think the filibuster is an important and unique force for consensus in Congress.
Ultimately, the biggest question could be which faction within the party to appease, or whose litmus test to prioritize.
Anyway, the predictable result of Thursday’s votes is that controlling the Senate will now more clearly equate to controlling the composition of the Supreme Court. As long as the same party holds the White House and the Senate, there will be no need to pick judges who hold at least some appeal to the minority party — those folks aren’t even speed bumps anymore, they’re just roadkill.
That won’t make much difference when the party holding the White House doesn’t control the Senate. Under those circumstances, presidents will still have to nominate judges whose credentials and reasoning are widely respected on both sides of the aisle.
But at times like these, when the White House and the Senate are in the same party’s hands, what’s the motivation to pick a mainstream jurist? The absolute control wielded by the majority opens the door to much more extreme views. Ultimately, the biggest question could be which faction within the party to appease, or whose litmus test to prioritize. Should the president someone who can be counted on to overturn Roe vs. Wade? An opponent of the landmark Heller ruling on gun rights? A strong voice in favor of deferring to federal agencies? A vigorous proponent of states’ rights?
Such a shift away from the judicial mainstream would encourage the public to see the Supreme Court as just another partisan branch of government, like the other two, rather than as the ultimate honest broker. It’s a view senators and interest groups have been promoting, wittingly or not, since the nomination of Robert Bork seemingly changed the focus from a nominee’s qualifications and integrity to the likely outcome of his or her rulings.
That’s a bad thing for the court, whose reputation for independence is central to its authority. And so, too, would it be to add more jurists who are so blinkered by ideology that they become consistent dissenters, unable to persuade their fellow justices or be persuaded by them.
Republicans, in turn, say they were simply following the lead of Democrats in the Senate who’d previously suggested that no Supreme Court seats should be filled in a presidential election year. It was an idiotic and inflammatory idea when Democrats expressed it, and just as idiotic when Republicans acted on it. And unprecedented.
Republicans further blame Democrats for using Bork to transform the confirmation process into an effort to predict how judges will rule on specific issues, and vote accordingly. They have a point. And the Bork episode clearly emboldened interest groups to become far more aggressive in trying to sway the process to their own ends.
There’s no getting away from the fact that different judicial philosophies yield different rulings. But there’s no strict correlation between the different approaches and whether the results favor Democrats or Republicans. Judicial activism can result in regulations being tossed out or new rights being discovered. Respect for precedent can preserve “Citizens United” as well as “Roe vs. Wade.” Originalism led Scalia to be a strong proponent of free speech as well as a determined obstacle to gay rights.
That’s why interest groups push senators to go further, to trying to unearth a judge’s sympathies in the hope of better predicting whether he or she will be an ally on issues they care about. The quality of a judge’s legal reasoning isn’t as important as where the reasoning might lead.
This feels like a bell that can’t be un-rung. Reinstituting the filibuster is certainly possible, but no party in control of the Senate would have an incentive to do so. And neither side seems to want to run the risk of another surprise on the court, a la former Justices David H. Souter, Byron White or William Brennan — appointees of Republican or Democratic presidents who confounded expectations. So expect the process of picking a justice to grow ever more political, to the detriment of the court those justices will serve.