There was no serious question among serious people that Judge Ketanji Brown Jackson was qualified to become an associate justice of the Supreme Court. She was no Bork. She was no Thomas. Efforts to Kavanaugh her were ridiculous to anyone with any knowledge and experience in law. What she was not was ideologically conservative, even though she’s quite clearly within the mainstream of judicial philosophy.
That means she wasn’t the person a Republican president would pick, which is fine but for the fact that Biden is a Democrat, Biden is president and you ran Trump as your candidate and got what you deserved. A loss. So you don’t get to pick the person you prefer and Biden does. That’s how it’s supposed to work.
The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.
Judge Jackson was confirmed 53-47. It should have been 99-0, assuming Rand Paul got lost on his way to the chamber. But then, the Dems hold the Senate majority for the moment, and are overwhelmingly likely to lose it given their acquiescence to their most radical fringe. What then?
We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.
The “they started it” debate is no better here than on the playground when you were in third grade. Don’t do it. The question is who ends it or whether we go scorched earth and destroy all norms that have enabled our nation to function up to now.
The result is a fiercely partisan process that demeans the Senate and politicizes the court, rendering it a creature of political will and power. At this stage, there is no incentive for either party to back down from this maximalism. Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.
The irony is that the refusal to give Merrick Garland a hearing was a seismic shift in the rules of the game, and Garland was that potential justice that the Republicans couldn’t fault. Hell, he could have just as easily been a Rep pick as a Dem.
The “hint” is that when the Republicans are back in the Senate majority, they will refuse to give Biden’s Supreme Court (and maybe lower courts as well) nominees hearings and essentially shut down the process. This is a game two can play. It’s also a game that will end in misery and destruction of what remains of the besmirched integrity of the least dangerous branch.
It’s not that the justices of the Supreme Court aren’t trying to do their job with integrity, although what they see their job as being may vary by philosophy. But gaming the personnel based on the Senate majority, notwithstanding the choice made by the president in the exercise of his constitutional authority, crosses a line that we will all, eventually, regret.
When norms give way to partisanship and ideology, when applying impartial rules yields to obtaining results by any means, institutional legitimacy erodes. The immediate gain is understandably tempting. The institutional damage might not be immediately evident, but it is as undeniable as it will be difficult to repair.
We may well hate the decisions of a Supreme Court that doesn’t rule the way we think it should. But we will hate it even more when the Supreme Court rules and other courts don’t care and do as they please. If you think things are horrible with the Court as it is, then you’re going to really hate it when the Supreme Court is rendered institutionally irrelevant.
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