Past clouds future high court fight
Partisanship has marked recent confirmations
WASHINGTON — It was a testament to the breakdown of the Senate’s judicial confirmation machinery that the first question posed by many this past week regarding an upcoming Supreme Court vacancy was whether Democrats could install a new justice entirely on their own.
The answer is yes, if the party sticks together. And the prospect of President Joe Biden’s eventual nominee receiving only Democratic votes is hardly far-fetched, given the bitter history of recent confirmation fights for the high court.
Justice Amy Coney Barrett, the last member of the court confirmed by the Senate, did not receive a single Democratic vote. But Republicans held a 53-47 advantage and could afford to lose a colleague or two in ramming through her nomination just before the presidential election in 2020.
With their bare-minimum 50-seat majority, Democrats will not have that luxury after Biden nominates the first Black woman for the court sometime in the next few weeks. Considering the toxic partisan atmosphere surrounding contemporary Supreme Court fights, it is conceivable she could make history not only because of her gender and race, but also as the first person elevated to the court by a tiebreaking vote of the vice president.
It would be a far cry from the simple voice-vote approval of many of her predecessors as recently as the 1960s. Or the 98-0 confirmation of Justice Antonin Scalia, a leading judicial conservative, in 1986. Or even the 87-9 vote in 1994 for Justice Stephen Breyer, a member of the court’s liberal wing, who announced Thursday that he would step down after nearly three decades.
The decline in consensus Supreme Court confirmations has been precipitous, and the escalation of partisan warfare has been sharp.
Deep bitterness lingers over the Democratic assault on Robert Bork in 1987; the routine deployment of filibusters against judicial nominees of both parties beginning during the administration of President George W. Bush; the Republican blockade of Judge Merrick Garland in 2016; the tumultuous confirmation of Justice Brett Kavanaugh in 2018; and the hardball Republican move to rush Barrett onto the court two years later.
With the Supreme Court deciding so many of the most polarizing issues of the day — including abortion rights and affirmative action — neither side is willing to cede much
ground, and both display their battle scars.
“It is a sad commentary on the nomination process that it has so disintegrated over the years,” said Sen. Susan Collins of Maine, one of the handful of Republicans considered to be in play as potential backers of Biden’s pick. “If you look at the incredibly strong vote by which Stephen Breyer was confirmed, you just don’t see it nowadays.”
Democrats would dearly like to avoid a skin-of-theteeth party-line vote for whomever Biden puts forward. One of the first calls made by Sen. Dick Durbin, D-Ill., chair of the Judiciary Committee, was to Collins, promising her whatever material and assistance he could provide to help her evaluate the forthcoming
nominee.
Democrats also hope the fact that Biden’s pick would replace a liberal justice and not tip the ideological balance of the firmly conservative court — and the fact that she will be an African American woman — will deter Republicans from a scorched-earth campaign when their odds of winning are low.
But although Republicans are promising an open-minded review of the nominee, hard feelings over the earlier confirmation clashes, most recently Kavanaugh’s fight against sexual assault allegations, are never far from the surface.
“Whoever the president nominates will be treated fairly and with the dignity and respect someone of his or her caliber deserves, something not afforded to Justice Kavanaugh and other Republican nominees of the past,” Sen. John Cornyn of Texas, a senior Republican member of the Judiciary Committee, said in response to Breyer’s retirement.
Besides Collins, another Republican who will be the focus of Democratic attention is Sen. Lisa Murkowski of Alaska, a frequent supporter of judicial nominees of Democratic presidents and the only Republican to oppose Kavanaugh.
Murkowski is running for reelection this year under a new ranked-choice voting system back home. Siding with Biden’s choice for the court could help her attract the Democratic and independent voters she could need to prevail under the new election rules in her state.
Sen. Lindsey Graham, R-S.C., a former chair of the Judiciary Committee, has also deferred to Democratic presidents in the past and voted for justices and lower-court judges they put forward.
Even before the nominee is known, it is clear the outcome in the Senate is most likely to be highly partisan, with the candidate receiving a few Republican votes at best — and perhaps none at all. For a country torn apart by partisanship and a court struggling with its image and credibility, that is far from an ideal outcome.
“I really think it would be harmful to the country to have a repeat of what we saw with the last two nominees being so narrowly confirmed,” Collins said.