For those too young to remember, too complacent to have noticed, or who didn’t pay attention in civics classes (remember when that was a thing?), here’s a brief history lesson about Supreme Court Justice confirmations in the Senate. Until President Trump was elected, Justice nominees were confirmed based on qualifications, not politics. A bipartisan coalition of Republicans and Democrats confirmed or blocked nominations of every one of them until Neil Gorsuch and Brett Kavanaugh. Three Democrats voted for Gorsuch and only one voted for Kavanaugh.
Before that, President Obama’s two radical progressive nominees were welcomed by several Republicans. It’s not that they believed in their politics, but they voted based on their qualifications. Elena Kagan was confirmed 63-37 and Sonia Sotomayer was confirmed 68-31. Amy Coney Barrett is as qualified as Sotomayer and more qualified than Kagan.
What changed? The hyper-politicization of confirmations is a new phenomenon. Today, there is absolutely zero question about whether any Democrats will vote in favor of confirming her. They will not. None of them. The only question is whether Democrats can sway four Republicans to vote with them. In the event of only three Republicans voting against, Vice President Mike Pence would be the tie-breaker.
Lisa Murkowski is almost certainly a nay. Susan Collins has indicated she may not vote in favor of confirming. Mitt Romney is always a wildcard and if the vote came down to him, it’s very possible he would flip to the dark side just to screw over his nemesis in the Oval Office.
Regardless of what happens in the upcoming election, it is imperative for this short-lived trend of blocking nominations along party lines to end. The judiciary is supposed to be the branch of government that is above politics, above the fray. But the stakes have been raised this year with both sides more contentious towards each other than any time since the Civil War. They hope to weaponize nominations and confirmations, not just within the court but also within the Cabinet.
Some would say the reason party lines have been drawn over Barrett is because of the proximity to the election. They might then say they opposed Kavanaugh because of the unsubstantiated accusations against him. But that leaves Gorsuch who had no scandals, tons of qualifications, and was stellar in his confirmation hearings. Only three Democrats voted to confirm. If that’s not partisan, nothing is.
Senate confirmation hearings used to be about qualifications, as they should be. But Democrats have made them political as history clearly demonstrates. Even Ruth Bader Ginsberg was confirmed with only three Senators voting nay.
