Judicial confirmation process
Acrimony over Supreme Court and other judicial nominations helps fuel the polarization poisoning American politics, undermining faith in institutions, shattering families and friendships, and embroiling businesses and markets in controversy.
Fortunately, 2020's elections have produced a fleeting opportunity to detoxify the confirmation process and handed both parties powerful motives to do so. The ideal moment might be before the high-stakes Georgia runoffs determine which party will control the Senate, as both parties may fear the confirmation process should the other party gain control.
In a written compact, Democratic and Republican senators could vent accumulated grievances, agree to put them behind, admit that both parties have contributed to dysfunction, restore the judicial filibuster at all levels and set agreed-upon parameters and principles for future confirmation hearings. However, the window of opportunity for such an accord may pass swiftly.
Confirmation hearings have turned the U.S. Senate - "the world's greatest deliberative body" - into a gladiatorial arena, with Republicans and Democrats taking turns ditching longstanding conventions and blaming one another.
This is a relatively new phenomenon. In 1857, the Supreme Court issued one of the most polarizing rulings in judicial history - Dred Scott v Sandford. Four years later, half the nation had seceded, and the remaining half was dangerously divided. Yet, Abraham Lincoln's five Supreme Court nominees breezed through the Senate without controversy. One senator voted against his first nominee; the rest were approved by acclamation. The length of time between nomination and confirmation ranged from a half-hour to seven days.
Even in our time, the Senate approved Justice Antonin Scalia 98-0 and Justice Ruth Bader Ginsburg 96-3.
Contrast those confirmations to
Democrats' rejection of Robert Bork, Republicans' refusal to consider Merrick Garland, filibusters against Samuel Alito and Neil Gorsuch, and sulfurous hearings over Clarence Thomas and Brett
Kavanaugh. This year, all Republicans but one voted to confirm Amy Coney Barrett, and all Democrats and independents voted against her. A question now hangs in the air as to whether a president of one party can get a Supreme Court justice confirmed by a Senate dominated by the other party.
Thus, the possibility of a Democratic president and a Republican Senate offers a chance and motive to de-escalate. Democrats will want Presidentelect Biden's nominees confirmed rapidly and calmly. Republicans would like some guarantee that future Republican presidents will enjoy the same civility - and no more threats of court-packing.
Given the relative stalemate delivered by the 2020 elections, a written, bipartisan compact could restore tried-and-true norms, with presidents of both parties reasonably certain that competent nominees will win easy approval. Possible provisions might include:
- Democrats would offer grievances about Republican actions ( e. g., Republicans stalling President Obama's lower-court nominations, refusing to consider Merrick Garland, eliminating the filibuster for Supreme Court nominees, confirming Justice Barrett days before the 2020 election).
- Republicans would offer grievances about Democratic actions (e.g., last-minute accusations against Judge Bork and Justices Thomas and Kavanaugh, endlessly filibustering Miguel Estrada and other Bush appointees, eliminating the filibuster for lowercourt nominees, filibustering Justices Alito and Gorsuch).
- Both parties would admit some degree of culpability in these past actions. But they would agree to disagree over the validity of specific complaints and over which party's actions have been more egregious.
- The parties would agree to restore the filibuster for Supreme Court and lower-court nominations, while pledging that the filibuster shouldn't be used routinely, for ideological reasons or unproven allegations of impropriety.