ANALYSIS
Given the hyper-partisan climate surrounding Supreme Court appointments, it may amaze you to remember the final confirmation votes for Justices Antonin Scalia and Ruth Bader Ginsburg.
In 1986, the Senate confirmed the conservative Scalia 98-0. In 1993, the liberal Ginsburg was confirmed 96-3.
Even though the process had not been immune to partisanship or scandal – Robert Bork would be rejected 58-42 the year after Scalia’s ascent, and Clarence Thomas barely survived Anita Hill’s sexual harassment allegations in 1991 – the Senate generally deferred to the president’s nominations.
Today, however, the process of confirming appointees to the nation’s highest court is tainted by partisan grievances.
Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett did not receive more than 54 yeas in votes that fell almost entirely along party lines during the Trump administration. Likewise, President Biden’s first nominee, Ketanji Brown Jackson, is expected to receive no more than a handful of Republican votes.
In this episode of History As It Happens, legal expert Lawrence Baum, who has studied the Supreme Court for nearly 50 years, discusses the negative consequences of a confirmation process that has devolved into full-blown political theater.
“Absurd questions are not new. Irrelevant questions are not new, but probably, on the whole, the level was unusually low in this one,” said Mr. Baum, referring to the general quality of questions posed to Judge Jackson by Republicans and Democrats.
While some GOP senators sought to pin down the nominee on such issues as critical race theory and gender ideology, Democrats did not apply much pressure on Judge Jackson to explain her judicial philosophy.
“My own feeling is it is very difficult to learn anything meaningful about a nominee from the hearings,” said Mr. Baum, a professor emeritus of political science at Ohio State University.
The Jackson hearings, however partisan and occasionally inane, did not approach the sheer absurdity of what transpired in 2018, when Democratic Sen. Sheldon Whitehouse of Rhode Island grilled then-Judge Kavanaugh about yearbook slang.
The tit-for-tat partisan brawling has left each side blaming the other for “starting it.”
Former Senate Democratic Leader Harry Reid’s nixing of the filibuster for most judicial appointments, Senate Republican Leader Mitch McConnell’s destruction of the Merrick Garland nomination, the Kavanaugh fiasco, and then the breakneck speed of Justice Barrett’s confirmation in 2020 – each side has plenty of ammunition to attack the other for damaging the image of the court by excessively politicizing the nomination process.
To listen to Lawrence Baum’s insights about the role of politics and ideology in shaping the Supreme Court, download this episode of History As It Happens.
