Millions around the country were captivated by the spectacle, but when Brett Kavanaugh testified before the Senate on September 27, 2018, he had an audience of five senators — two Democrats, three Republicans. He needed to convince two; in the end, he won the support of three. Ten days later, Kavanaugh was sworn in as a justice of the United States Supreme Court.
Kavanaugh’s 50-48 confirmation vote represented the smallest margin by which a justice was confirmed to the Supreme Court since Stanley Matthews’s appointment 137 years ago, at a time when the Senate had only 47 members. The man Kavanaugh replaces, Justice Anthony Kennedy, was confirmed 97-0.
The vote for Kavanaugh was sharply divided along party lines; only Sens. Joe Manchin (D-W. Va.) and Lisa Murkowski (R-Ala.) voted against their respective parties. Historically, the Senate has given the president significant deference in judicial nominations, and qualified Supreme Court nominees have usually been confirmed. In recent times, that deference has all but disappeared.
From the Supreme Court all the way down to the lowest state judgeships, partisanship is on the rise. Courts are more divided and decisions are more predictable as it becomes increasingly easy to apply the label “Democrat” or “Republican” to those on the bench. This partisanship, if it continues unabated, will continue to make it harder to find free and fair justice in America.
Confirmation Spectacles
In 1956, less than a month before the presidential election, Supreme Court Justice Sherman Winton retired, leaving Republican President Dwight D. Eisenhower with an opening to fill. Eisenhower chose William Brennan, a Democrat, to fill the seat as a recess appointment and submitted him as his nominee to fill the seat on a permanent basis. Eisenhower’s conciliatory bet paid off, and he won the 1956 election in a landslide. A few months later, Brennan was confirmed by a voice vote.
This episode is emblematic of the way Supreme Court nominations used to proceed. Martin Redish, professor of law and public policy at Northwestern University, told the HPR that the senate nomination process “began with great deference to the president.” Prior to World War I, hearings for Supreme Court nominees were rare and usually closed to the public. If a hearing was heard, the nominee often did not testify.
Today, the process is unrecognizable. As Joe Heck, a former U.S. representative from Nevada, told the HPR, “the underlying tone of the Senate … manifests itself in the confirmation process.” Thus, as the government has become more divided, so have judicial nominations. Michael Klarman, a Harvard law professor, confirmed this: in earlier times opposition to nominees “didn’t manifest itself in opposition along political lines. There were lots of liberal Republicans and lots of conservative Democrats.” Today, however, those lawmakers have long been voted out, and their ability to build consensus has disappeared.
It is difficult to pinpoint the beginning of the shift toward a partisan process, but there have been several nominations that have set a new standard for the Senate’s willingness to play politics with the Supreme Court. In 1969 and 1970, Richard Nixon nominated Clement Haynsworth and G. Harrold Carswell to the seat vacated by Abe Fortas. Both nominees were rejected over union labor and civil rights concerns, shocking the legal community. Almost two decades later, President Reagan’s nomination of Robert Bork was defeated on the basis of his previous opposition to the Civil Rights Act and allegations of his racist background, causing further tension.
More recently, when Justice Antonin Scalia passed away in February 2016, then-President Obama nominated Merrick Garland, who was widely seen as a compromise pick, to fill his seat. However, with the GOP in control of the Senate, Mitch McConnell refused to give Garland even a hearing on the grounds that it was an election year and the seat should go to the winner of the 2016 election.
Finally, in 2017, McConnell lowered the threshold for confirmation from 60 votes to 51, invoking the “nuclear option.” Senate Republicans then proceeded to confirm Neil Gorsuch to the Supreme Court seat that had been held open since the end of the Obama administration. Gorsuch received two Democratic votes. A year later, the country saw Kavanaugh confirmed with one Democratic vote.
Away from the Cameras
The lower federal courts have also been subject to increasing partisanship in the confirmation process. Redish used the example of a deputy attorney general who was nominated to the D.C. circuit at the end of Bush’s second term. Though he was “as competent as anybody could possibly be … because it was nearing the election, the Democrats just killed it.”
When Obama took office, Senate Republicans acted similarly. During his first term, the number of filibustered nominees was almost as many as had been filibustered during the previous 11 presidencies together. In response to this obstructionism, Democrats responded by lowering the vote requirement to move a lower-court nominee past a filibuster from 60 votes to 51 votes, angering Republican lawmakers and undoubtedly contributing to their decision to “go nuclear” for Supreme Court nominees in 2017.
Today, Senate leaders also treat lower court nominations as bargaining chips to be used to further their political objectives. This is exemplified by the recent deal between Democrats and Republicans to confirm 15 of President Trump’s judicial nominations in exchange for the freedom to leave Washington earlier to campaign for the 2018 midterms. Though partisan stunts over lower court nominees have existed for a while, they have increased over the past few years — partisanship is not limited to the Supreme Court.
Elect or Appoint?
In 38 states, judges are elected rather than appointed, a process nearly unheard of in the rest of the world. These elections have increased the partisanship in state courts around the country.
In some states, this increase has resulted from legislation. North Carolina provides one example; in 2017, the Republican supermajority in the state legislature overrode Democratic Governor Roy Cooper’s veto of a bill that made state judicial elections partisan races. Additionally, the overall prevalence of money in politics has reached state judicial races, and outside groups are spending more than ever on state court races. According to the Brennan Center at NYU Law School, outside groups engaged in a “$27.8 million outside spending spree, making up an unprecedented 40 percent of overall Supreme Court election spending” during the 2015-2016 election cycle.
In other cases, the impetus for partisanship comes from the voters. Heck, who also served as a state senator from 2004 to 2008, said that in Nevada, though judges run as non-partisan, “people still want to know [with which party a judicial candidate is affiliated], and unfortunately, I think that’s what drives their decision in many cases.” In 2010, Nevada voters rejected a plan for the merit selection of judges.
Redish, in his book Judicial Independence and the American Constitution: A Democratic Paradox, likewise argues that judicial elections are so compromising as to be unconstitutional because they violate the requirement of an independent judiciary in the Constitution. While this view is outside of mainstream legal theory, it’s clear that electing judges poses problems for the administration of justice and has resulted in increased polarization.
The Verdicts
As would be expected, rising polarization in the judicial selection process is leading to partisan case outcomes, and this shift is most obvious on the Supreme Court. “The court has always been an institution … where the justices’ values influence their decisions,” said Klarman. The court does not exist in a vacuum, and the justices are humans that view issues through the lens of their own experience. However, “the difference in the last 20 or 30 years is that the justices are not just political. … They’re also pretty nakedly partisan.”
This partisanship is demonstrated by a stretch of recent cases. Though there have been close rulings on many contentious issues throughout the Court’s history, the consistency of the recent divide has been striking. “[It’s] hard to look at what the court has been doing over the last 10 or 20 years and not simply draw the conclusion that justices appointed by Republican presidents and justices appointed by Democratic presidents just serve the interests of their parties,” argued Klarman.
The effects of the partisan process on lower federal courts are less obvious, but it is likely that further partisanship in the confirmation process will lead to case outcomes that are explicitly partisan. With the obstructionism now present in confirmation battles, Republicans were able to hold open many judgeships throughout the federal judiciary for President Trump to fill, and he is now appointing conservative judges at an unprecedented rate in order to further Republican interests at all judicial levels.
Finally, the most profound effects on case outcomes have been in elected state courts. With the rise of outside money and increase in pressure from voters and state legislatures making it much harder to get elected as a judge running outside of the usual party apparatuses, judges have increased incentives to reflect partisanship in their rulings. One of many examples from around the country was reported by the New York Times. In 2004, Ohio Republican Justice Terrence O’Donnell’s reelection campaign accepted “thousands of dollars from the political action committees of three companies that were defendants in [upcoming lawsuits]. … Weeks after winning his race, Justice O’Donnell joined majorities that handed the three companies significant victories.”
Judicial elections also encourage judges to issue harsher rulings closer to elections in fear of television ads from the other party attacking them as soft on crime. According to a study by the Brennan Center, judges are more likely to rule against criminal defendants and to give harsher sentences in an election year. These conclusions are supported by the experience of California Judge Aaron Persky, whose sentencing in the rape trial of a Stanford swimmer was widely criticized as being too lenient — two years after the trial, Persky was voted out of office. Independent of one’s opinion of Persky’s ruling, this example makes it clear that judicial elections can pose a conflict of interest for judges. Any judge wishing to remain in office must be aware of the potential for media attention to impact his or her reelection prospects, and that creates a powerful incentive to judge a case based on popular opinion rather than its merits.
These are times of deep divisions between the left and the right in American society, and the courts are no exception. Despite convictions like Heck’s that “the judiciary is supposed to be that non-partisan fair and equal arbiter of all things executive and legislative,” partisanship in the judicial confirmation process puts both the perception and execution of those values under threat. Societal polarization is threatening our courts, and unless the United States is able to reverse course, the judicial branch will become simply another victim of petty party politics. Without a return to independence from partisanship, due process will become increasingly hard to find.
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