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Is the Supreme Court confirmation process irreparably broken? Some senators say yes.

Judge Ketanji Brown Jackson is on track for a narrow confirmation, but her hearings illustrated an ongoing disintegration of the process. Senators fear it will only get worse.
Image: Lindsey Graham, John Cornyn, Chuck Grassley
Sen. Lindsey Graham, R-S.C., questions Supreme Court nominee Ketanji Brown Jackson at her confirmation hearing before the Judiciary Committee on March 22. Evan Vucci / AP

WASHINGTON — By historical standards, the confirmation of Judge Ketanji Brown Jackson should have been a layup: A liberal Supreme Court pick who’s indisputably qualified, recently approved by the Senate to sit on a powerful circuit court and nominated under an all-Democratic government to replace an aging liberal after a long-anticipated retirement.

Yet the process turned ugly. Republicans sought to tarnish her image with graphic innuendo about her sentencing in child pornography cases. They hectored her about political issues like critical race theory. Then they came out against her en masse, even though Sen. Richard Burr, R-N.C., called her “undoubtedly highly qualified, knowledgeable and experienced.”

Jackson is on track to be confirmed with a thin veneer of bipartisan support: Sen. Susan Collins of Maine is the only Republican to endorse her so far. One senator who voted to confirm her last year to the U.S. Court of Appeals for the District of Columbia Circuit, Lindsey Graham of South Carolina, has flipped. She appears headed for a deadlock in the Senate Judiciary Committee, probably forcing Democrats to jump through an unusual hoop to bring her name to the floor.

But the likelihood of narrow success for Jackson obscures the ongoing disintegration of the Supreme Court confirmation process, which some senators fear is irreparably broken. While blame games are abundant, consensus solutions to repair it are lacking.

Republicans remain hungry for confrontation despite five years of using unprecedented tactics to engineer the most conservative Supreme Court in a century — a 6-3 majority poised to reshape U.S. law. Senators justify it in part by citing Democrats' treatment of conservative judges dating back decades. Many also insist that any nominee embrace “originalism,” a framework of narrow constitutional interpretation popular on the right.

Garland and 'the point of no return'

Democrats say Senate Republican Leader Mitch McConnell broke the process in 2016 when he eliminated a longstanding presumption that a president’s nominee for a vacancy gets a vote. For 10 months he blocked President Barack Obama’s pick, Merrick Garland, saying the presidential election was too close. Then in 2020, he rushed through Justice Amy Coney Barrett the week before the election after the death of liberal icon Ruth Bader Ginsburg, pulling the court to the right.

“The Merrick Garland debacle was the point of no return. Once McConnell stole that seat from Obama, I didn’t think there was any way to depoliticize this process,” said Sen. Chris Murphy, D-Conn. "Something fundamentally broke in this place when Sen. McConnell chose not to give even a hearing to Merrick Garland."

Murphy said the logical consequence of McConnell’s move is that a future Supreme Court pick may never be confirmed under a president and Senate run by different parties, which was the basis for the Kentucky Republican’s blockade.

“I shouted this as loud as I could when McConnell made that decision. I said the consequence of McConnell’s decision will be an eventual constitutional crisis,” Murphy said. “And I think Republicans made it absolutely clear that if they have control, they will never confirm a Democrat’s choice for the Supreme Court.

“My fear is that we haven’t come close to the bottom,” he said.

McConnell hasn’t foreclosed on a further escalation, declining last year to say whether he’d allow Biden to fill a potential Supreme Court vacancy with a mainstream liberal in 2023.

Republicans are carrying a different set of scars and trauma, which were on display during the Jackson hearings. They remain bitter about Robert Bork, the 1987 Ronald Reagan nominee who was excoriated as extreme and unfit before he was voted down 42 to 58 by a bipartisan majority.

McConnell said it all began when Democrats “assassinated” Bork. Today, he said, the Senate is in “full assertiveness mode” and unwilling to defer to the president on the high court.

“No matter who is in the majority in the Senate, for the foreseeable future, the confirmation process is going to be viewed by senators as a co-responsibility,” he said Thursday at a Punchbowl News event. “In other words, the president gets to initiate, but we are full partners in the process.”

Bork, Thomas and GOP trauma

Other Republicans cited the tense battles over Justices Brett Kavanaugh and Clarence Thomas. Both were accused of sexual misconduct by women who aired their claims publicly before the Senate voted to put them on the high court.

Sen. Ted Cruz, R-Texas, was unmoved by Democrats’ concerns that a divided government may never produce another confirmation.

“Well, those Democrats ought to reassess their disgraceful behavior with Justice Brett Kavanaugh,” he said, calling it a “political circus.”

Democrats argue those hearings were ugly not because the two men were conservatives but because they were accused of sexual misconduct. Republicans insist they were smeared, and they cite that antagonism as a basis for their own escalation in judicial wars.

“It really goes back to when I was here as a staffer — you had Bork then shortly after that you had Thomas and these became fiercely ideological battlegrounds,” said Senate Minority Whip John Thune, R-S.D. “The Supreme Court nominations really became an arena for litigating the big differences that people have on ideology in this country and I think that’s changed the landscape significantly.”

The use of the filibuster on judicial nominees escalated until 2013, when Democrats eliminated the 60-vote rule for confirming lower court judges. In 2017, Republicans nuked it for Supreme Court nominations in order to confirm Justice Neil Gorsuch.

“We may have passed the point of no return when the super-majority was done away with and simple majority became the requirement for getting judges through,” Thune said.

'Grievous wounds to the court'

Sen. Tim Kaine, D-Va., said the Republican complaints about their nominees are incomparable to the refusal to permit a hearing for Obama's nominee in 2016 and ramming through their pick in 2020.

"I do think those two actions were grievous wounds to the court and to this body," he said. "But I don't think that just gets fixed with a process change. Because it's not like you can undo both of those massive mistakes."

To some progressives, the solution is for the Democratic Congress to add four seats to "rebalance" the court and fill them with liberal justices in retaliation for Republican tactics. But that effort is going nowhere fast in Congress: The Judiciary Act has just three Senate sponsors and 51 House backers. And Republicans like McConnell have seized on it as a political cudgel to use against Democrats, some of whom oppose the bill and fear it would trigger further escalation.

Sen. Dick Durbin, D-Ill., the chair of the Judiciary Committee, said the days when Ginsburg was confirmed 96-3 and conservative icon Justice Antonin Scalia was confirmed 98-0 are long gone.

“It was just a different day,” he said. “The court has become such a political issue.”

John Breaux, a former senator from Louisiana, said the judicial battlefield mirrors rising partisan polarization in Congress, which has also rendered conservative Democrats like him extinct. He mourned the days of presidential deference on judges.

“The dividing line between Republicans and senators wasn’t a wall,” he said. “It was just an aisle.”