- The Washington Times
Tuesday, April 12, 2022

The Supreme Court is supposed to be above the political fray, but statistics showing a sharp decline in bipartisan confirmations of justices since 2005 suggest the high court has become ground zero for politics.

Adam Feldman, founder of the Empirical SCOTUS blog, says all evidence indicates that a president may not be able to muscle through a nominee for the Supreme Court unless his or her party controls the Senate.

Divisiveness has increased since Republicans refused to process former President Barack Obama’s nominee Merrick Garland in 2016 and instead held the seat open until after the 2016 election, he said.

“It’s really been like a tit for tat,” Mr. Feldman said. “It’s just more partisan.”

His blog notes that the three most recent appointees won confirmation by margins equal to or less than that of Justice Clarence Thomas in 1991 — one of the most contentious confirmation battles in recent history after he was accused of sexually harassing a colleague, Anita Hill. Justice Thomas’ Senate confirmation vote was 52-48, with all 41 Republicans and 11 Democrats voting for him and 46 Democrats and two Republicans voting against.

Today’s situation bodes ill for President Biden if Republicans retake the Senate in November’s midterm elections and another vacancy occurs in the nine-member high court. Only three Republicans — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — joined all 50 Democrats in confirming Justice-designate Ketanji Brown Jackson to the Supreme Court last week. The confirmation vote tally was 53-47.

No Senate Democrats joined the GOP in support of Justice Amy Coney Barrett, who was confirmed in a 52-48 vote in 2020. She’s the high court‘s only justice who had no bipartisan support for her confirmation.

In 2018, Justice Brett M. Kavanaugh, who faced allegations of sexual misconduct dating back to high school, was confirmed in a 50-48 vote, with only one Democrat — Sen. Joe Manchin III of West Virginia — voting in his favor. (Sen. Steve Daines, Montana Republican, was absent during the vote, and Ms. Murkowski voted “present.”

A key element in the partisan divide is the elimination of the 60-vote threshold for ending a filibuster, allowing an appointee to take the bench via a simple majority vote.

Republicans did away with the filibuster for high court nominees in 2017 to get former President Donald Trump’s nominee Justice Neil M. Gorsuch confirmed. He was confirmed in a 54-45 vote, with support from three Democrats — Mr. Manchin and former Sens. Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana.

Republicans blame Democrats for the move, saying there was a precedent for the rule change because the late Senate Majority Leader Harry Reid blew up the filibuster for lower court nominees in 2013.

“Fifty votes, you don’t have to work together,” Mr. Feldman said.

Bipartisanship had been the norm for Senate confirmations for Supreme Court nominees as recently as the 1990s.

In 1993, the late Ruth Bader Ginsburg, long regarded as one of the high court‘s most liberal justices, was confirmed in a 96-3 Senate vote — with 41 Republicans approving President Bill Clinton’s nominee.

Similarly, the late Antonin Scalia, known as one of the court‘s most conservative justices, was confirmed in 1986 in a 98-0 Senate vote.

Sen. Richard Durbin, Illinois Democrat and chairman of the Senate Judiciary Committee, last week called for a return to bipartisanship, blaming divisiveness on Republicans ending the filibuster for Supreme Court nominees.

“We have to continue to work to build bipartisanship,” Mr. Durbin said. “We’ve got to continue to build those bridges.”

Senate Minority Leader Mitch McConnell, who was instrumental in eliminating the filibuster, hasn’t disclosed what a GOP-controlled Senate would do with a Biden nominee. But the Kentucky Republican signaled in 2021 that a nominee wouldn’t get processed during an election year.

“I don’t think either party … if it were different from the president, would confirm a Supreme Court nominee in the middle of an election,” Mr. McConnell said last summer. “What was different in 2020 was we were of the same party as the president.”

Only 11 Supreme Court nominees have been rejected in a Senate roll call vote, the most recent being the late Judge Robert Bork in 1987 — and bipartisanship was on display in that vote. In a 58-42 vote against President Ronald Reagan’s nominee, two Democrats voted for Bork and six Republicans voted against him.

Gayle Trotter, a conservative attorney and analyst, said confirmations became much more political when Democrats began using personal attacks during the confirmation process — pointing to Bork, whom liberals painted as an activist who would roll back civil and women’s rights.

“That all started with Judge Bork,” Ms. Trotter said. “[Then] Senator [Joseph R.] Biden was part of the effort to smear Judge Bork and Justice Thomas and Justice Kavanaugh.”

Curt Levey, president of the Committee for Justice, said he wouldn’t go as far as to say the Senate would hold up a nominee if a president of the opposite party were to offer one. But he does say the process has become more partisan based on the belief that the way to “make social change” is through the justices.

“Playing hardball is the norm,” he said.

However, Mr. Levey said that if Mr. Biden were to see another Supreme Court vacancy, the president would likely need to nominate someone far more moderate than Justice-designate Jackson should the GOP take control of the upper chamber after the 2022 midterm elections.

“[Republicans] have never engaged in the politics of personal destruction the way Democrats did with Bork, Thomas or Kavanaugh,” he said. “There is always going to be a few Republicans — the Murkowskis and Collins and Romneys … of the world [who] aren’t going to vote against a nominee just because McConnell did.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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