Senate minority leader Mitch McConnell argued he went into the confirmation process of Judge Ketanji Brown Jackson with an “open mind”, but upon the conclusion of the hearing he announced he will vote against her ascension to the Supreme Court. Although Judge Brown Jackson’s recent confirmation as U.S. Circuit Judge for the District of Columbia Circuit was relatively close 53–44, she did receive some bipartisan support with Republican Senators Collins (Maine), Graham (South Carolina), and Murkowski (Alaska). However, McConnell’s signal to oppose Brown Jackson’s confirmation coupled with Senator Graham’s aggressive, Frank Costanza-like Festivus “I’ve got a lot of problems with you people and now you’re gonna hear about it” performance at the confirmation hearing — may portend a straight partisan vote.

In recent years, the Supreme Court confirmation process has become more politically polarized. That’s not to say there haven’t been polarizing votes in the past. For instance, President Herbert Hoover’s selection of John Parker in 1930 was rejected by the Senate in a close vote after pro labor groups and the NAACP mobilized against Parker’s confirmation. President Ronald Reagan’s nominee, Robert Bork was voted down with only 42 votes after an arduous and contentious confirmation hearing in 1987. While both Democrats and Republicans voted against his confirmation, pundits point to the Bork hearing as the source of “a lasting partisan divide over judicial nominations”. It was an aggressive opposition campaign that included political ads (see link below).

A Partisan Curse on the Court?

Was Bork’s failed confirmation a turning point to a more polarized process? Was a spell cast on the Supreme Court confirmation process forever subjecting it to intense polarization? For more than eight decades, the Boston Red Sox were saddled with the curse of the Bambino until it was broken in 2004 in epic fashion. Is the Supreme Court experiencing a Red Sox-like partisan curse because of the failed Bork nomination?

Data illustrate growing partisanship in Supreme Court confirmation votes, but Bork’s failed nomination doesn’t appear to be a curse or the source; the process has become more partisan over time.* First, as the chart shows below, nominees after the Bork rejection still garnered considerable support — including bipartisan support. The confirmation process became more partisan over time — culminating with the Trump appointees to the Supreme Court which have been the among the most polarizing (or process has been made more polarizing**) in recent history.

The three justices nominated by President Trump received fewer yes votes on average (52) than the four presidents before him, Obama (65.5), W. Bush (68), H.W. Bush (71), and Clinton (91.5). Obama, W. Bush, Clinton, and H.W. Bush each had two justices confirmed to the Supreme Court.

Not only were Trump’s nominees confirmed with razor-thin majorities, they were among the most partisan. The Trump appointees all had less bipartisan support than other justices confirmed since 1990. For example, Justice Amy Coney Barrett — Trump’s final appointment to the Court — was confirmed without a single Democratic Senator. It was the first strictly party line vote in recent history. But Trump’s other nominees didn’t fare much better. Brett Kavanagh received one Democratic vote — Senator Manchin of West Virginia, and Justice Gorsuch received three Democratic votes.

But it didn’t start with President Trump. The trend has become more partisan over the past several decades (see the chart below). There is a steady decline in bipartisan support over time. In fact, justices received double digit support from members of the opposite party until the confirmation of George W. Bush’s nominee Samuel Alito in 2006. Even Clarence Thomas, who faced a difficult and highly contentious confirmation hearing process, received 11 Democratic votes — and was confirmed when the Democrats were in the majority. The Trump nominees were perhaps the culmination of the most partisan effort in the history of Supreme Court and the indication such polarization will continue with the confirmation vote of Judge Brown Jackson.

Of course, not every situation is the same. There is nuance and context behind the data. For example, Justice Souter had broad bipartisan support because he was considered to be a moderate. Conservatives, in fact, argued Souter’s selection would be one of H.W. Bush’s worst mistakes. In the end, as his record on the Court would illustrate he often sided with the more liberal justices on the Court. President Clinton’s nominee, Ruth Bader Ginsburg received broad bipartisan support — receiving 96 votes. That may seem surprising given her liberal-leaning work over the years in high profile cases. But context matters. After the brutal confirmation process for Clarence Thomas, and after others rebuked President Clinton’s offer to serve on the Court — most notably Mario Cuomo — although a liberal, Ginsburg was considered a consensus choice. In the end Ginsburg’s confirmation was considered “harmonious”. If Ginsburg were nominated today, it would likely be a vastly different vote.

At times, the stakes aren’t as high when the nominee is replacing an ideologically similar justice. For example, President Clinton’s selection of Justice Breyer replaced Justice Harry Blackmun and although Blackmun was appointed by President Nixon, he was among the most liberal justices on the Court. Breyer was confirmed 87–9. On the other hand, conservative judge Coney Barrett replaced one of the most prominent liberals on the Court in Ginsburg and “flipping” the Court in favor of the conservative bloc. Coney Barrett was confirmed 52–48. The same issue occurred when President George H.W. Bush nominated Clarence Thomas. Justice Thomas — a conservative’s conservative judge replaced the liberal lion, Justice Thurgood Marshall. In other words, the stakes were much, much higher. Although Brown Jackson isn’t flipping a seat, it appears to be as partisan as if she was.

The Polarizing Public Spectacle

Because of social media and television, the confirmation hearing process itself may be adding to the polarization. At many points during the recent confirmation hearing you may have wondered how some line of inquiry was related to Judge Brown Jackson’s qualifications or judicial philosophy at all. In many ways, the hearings have become performance art with little to do with the actual nominee — just a vehicle to disseminate political messaging for political purposes, like the upcoming presidential election. Often Senators were signaling to their political base, like Senator Ted Cruz’s examination of children’s books. But such performances aren’t limited to one political party — both have been known for such demonstrations.

Robert Dahl’s 1957 piece, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” is an important reminder of how the Supreme Court is a policymaker in a political environment. There is no Platonic ideal to appoint justices, no philosopher kings. It is inherently a political process and judges are mere mortals who play an important role in policymaking. That makes instilling public confidence in the Court all the more critical, especially with upcoming cases that will have major impacts on society, like abortion and many other issues. Whether this growing polarization and partisan divide in Supreme Court confirmations is good for its long-term legitimacy is unclear, but with so much on the line it most certainly doesn’t help.

There is no Platonic ideal to appoint justices, no philosopher kings. It is inherently a political process and judges are mere mortals who play an important role in policymaking. That makes instilling public confidence in the Court all the more critical.

It doesn’t appear that the upcoming vote of Judge Brown Jackson will reverse the recent trend with all signs pointing to another partisan confirmation vote. It’s the same dynamic Trump faced (a slim majority in the Senate), except now it’s President Biden and the Democrats in control. Therefore, the polarization in Supreme Court confirmations is likely to continue when they call the roll for Judge Brown Jackson. Perhaps it’s not a curse on the Court, but it doesn’t help with its legitimacy.

Notes

*For the purpose of the analysis I omitted the confirmation of Anthony Kennedy who was selected by President Reagan after the failed Bork nomination. Kennedy was unanimously confirmed and was considered a compromise choice in the aftermath of Bork.

**For example, put aside that Amy Coney Barrett is a more conservative jurist than Ruth Bader Ginsburg. The process itself that was the lightning rod. Specifically, the Democratic senators objected to Coney Barrett’s confirmation because it was right before a presidential election arguing hypocrisy from Republicans. Republican leadership had ignored Obama’s nomination of Merrick Garland under the pretense that they had to wait until after the 2016 presidential election. For more about this see my piece, “President Biden Gets a Supreme Court Pick. May the Mitch Be with You…”