Tell It to the Judge

Once upon a time, qualified nominees for the US Supreme Court chosen by presidents of either party were routinely approved by overwhelming bipartisan Senate votes. The conservative Antonin Scalia was confirmed by a 98-0 vote, and the liberal Ruth Bader Ginsburg was confirmed 96-3. Even the Court’s first black justice, Thurgood Marshall, received 69 votes in 1967, when America had just recently emerged from segregation. Much later on, the vote margins weren’t as large, but still quite comfortable. As recently as 2009, Sonia Sotomayor was confirmed 68-31, and a year later, Elena Kagan received 63 votes.

All of that is a bygone era, however, as today, every Supreme Court nomination immediately flares into a pitched partisan battle. This new front that has opened in the political wars takes two forms, one of them ridiculous and the other outrageous. The first is that senators no longer cast their votes on a candidate for the High Court based on neutral criteria like competence, character, experience, and temperament, but instead on judicial philosophy and presumed political leanings.

That is, of course, a senator’s prerogative. But it has unfortunately turned confirmation hearings into boringly predictable affairs, a two-step dance in which senators attempt to bait a nominee into opining on purely political or cultural matters with no relevance to a seat on the Court, while the nominee seeks to deftly sidestep the issue.

It’s particularly striking when even those senators who strongly profess a belief that the role of judges is to decide the law rather than make policy try to goad a nominee into taking positions on things that are the province of legislatures, as happened repeatedly during last week’s confirmation hearings for Ketanji Brown Jackson. Arkansas Republican Senator Tom Cotton, for example, who kept trying to identify Jackson with criminal-justice reform efforts he vehemently opposed (legislation that was passed in 2018 and was in fact supported by the Orthodox Jewish community) asked, “Do you think the United States should strengthen or weaken sentences for fentanyl traffickers?”