Supreme Court nominations shouldn’t be so partisan

By Matthew Gagnon

This week, the U.S. Senate Judiciary Committee is holding hearings to consider the nomination of Amy Coney Barrett as an associate justice of the Supreme Court. 

Those hearings, as they always seem to be these days, are entirely useless wastes of time. Every single senator that is on the committee has already made up their mind on Barrett’s nomination — in both directions — and there isn’t a single thing that they could learn from interviewing her that will change their minds. 

In fact, not only are we already certain of what the committee’s opinion is, I can already tell you what the final vote on Barrett’s nomination will be in front of the full Senate. When she is voted on, the Senate will approve her to sit on the court by a margin 51 to 49. 

When completed, this will mark the third ultra-partisan nomination vote in a row for Supreme Court vacancies. Voting for Supreme Court nominees has become increasingly politicized over the years. 

It was not always this way, though. For most of the 20th century, judicial nominees to the Supreme Court would routinely sail through the Senate without much difficulty. From the time of Franklin Roosevelt’s first Supreme Court nomination in 1937 through 1990, the lowest number of votes any approved justice received — outside the odd case of Sherman Minton, who won his nomination 48 to 16 — was 62.

So simple was the nomination process in the past that in that same time period, 15 justices were given their position on the court by acclimation, without even having a divided vote recorded. 

So what happened? Why are things so contentious today, when they weren’t in the past?

Those on the left of American politics will tell you that it is because Republican appointments have gone from the reasonable, moderate jurists of the past to the radical, mouth breathing, knuckle dragging Federalist Society plants that we see today.

That, however, isn’t true. For instance, Antonin Scalia, who Amy Barrett clerked for and who she calls a mentor, was famously the most conservative Supreme Court justice of the last quarter century. Yet when he was nominated by Ronald Reagan in 1986, Scalia ended up passing the Senate by a vote of 98 to 0. 

The truth of why we are where we are today is quite simple: the Democrats chose to make it hyperpartisan during the 1987 nomination of Robert Bork. 

Upon the retirement of Justice Lewis Powell Jr., Reagan nominated Bork, who at the time was a federal appeals court judge. Bork was a conservative justice, and subscribed to the originalism doctrine.

That in and of itself was apparently not terribly important when Scalia was approved with no dissent a year earlier. What changed was that Democrats feared that Bork’s approval would make the court too conservative, and they simply couldn’t allow that to happen. 

“Robert Bork’s America,” said Ted Kennedy on the Senate floor, “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, [and] schoolchildren could not be taught about evolution…”

The Democratic Senate majority took Kennedy’s words and ran with them, ultimately voting down Bork along mostly partisan lines. It worked. And because it worked, they tried it again when Clarence Thomas was nominated, though he barely squeaked by.

Despite this, Republicans almost universally backed President Bill Clinton’s nomination of both Ruth Bader Ginsburg and Stephen Breyer. And yet, when President George W. Bush came to the White House, Senate Democrats blocked an enormous number of appointments to the federal judiciary, including a new tactic: the first use of a fillibuster to block a federal appeals court nominee. In addition, Bush saw both of his nominees to the Supreme Court treated to highly partisan games, with a near party line vote on Justice Samuel Alito.

And yet, both Justice Sonya Sotomayor and Justice Elena Kagan were approved rather easily, with both earning more than 60 votes in the Senate.

President Barack Obama’s nomination of Merrick Garland to replace Scalia was the first time Republicans decided to play by the Democratic playbook, and spike a Democratic nominee in an act of political gamesmanship. 

Was it political? Yes. Should appointments be handled that way? No. But can you really say you are surprised with how their nominees have been abused by the increasingly partisan left, all for the sin of not sharing their activist interpretation of law?

And now here we are, forever frozen in a state of never ending hyperpartisanship. Welcome to the new normal. 

Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.