The Politics of Supreme Court Confirmations and Recommendations for Reform

The last few years have shown that the Supreme Court is now covered by the same toxic cloud that has enveloped all of the nation’s public discourse. Although the Court is still respected more than most institutions, it’s increasingly viewed through a political lens. What most concerns people is how judicial politics affect the Court’s “legitimacy” — perhaps a subject for another time — but what lessons can we draw from the history of confirmation battles?

Politics Has Always Been Part of the Process

Politics has always been part of the process of selecting judicial nominees, and even more part of the process of confirming them. From the beginning of the republic, presidents have picked justices for reasons that include balancing regional interests, supporting policy priorities, and providing representation to key constituencies. Whether looking to candidates’ partisan labels or “real” politics, they’ve tried to find people in line with their own political thinking, and that of their party and supporters. Even in the old days, it was rare for someone to be on the Supreme Court “short list” of presidents of multiple parties. Look at the judicial battles of John Adams and Thomas Jefferson, with the Midnight Judges Act — the original court‐​packing — as well as Jefferson’s failed attempts to appoint justices to counter the great Federalist John Marshall. In the years that followed, when U.S. politics were defined by rivalries within the Democratic‐​Republican Party and its successors, ambitious lawyers knew that their careers depended on navigating the intra‐​party split. There’s never been a golden age when “merit” as an objective measure of legal acumen was the sole consideration for judicial selection.

When those nominees got to the Senate, they faced another gauntlet, particularly when the president’s party didn’t have a majority. Historically, the Senate has confirmed fewer than 60 percent of Supreme Court nominees under divided government, as compared to just under 90 percent when the president’s party controlled the Senate.¹ Timing matters too: over 80 percent of nominees in the first three years of a presidential term have been confirmed, but barely more than half in the fourth (election) year.

Nearly half the presidents have had at least one unsuccessful nomination, starting with George Washington and running all the way through George W. Bush and Barack Obama. James Madison had a nominee rejected, while John Quincy Adams had one “postponed indefinitely” — you have to love that euphemism. Andrew Jackson was able to appoint Roger Taney only after a change in Senate composition, while poor John Tyler, a political orphan after the Whigs kicked him out of their party, had only one successful nomination in nine attempts. Most 19th‐​century presidents had trouble filling seats, before we had a run from 1894 until 1968 where only one nominee was rejected, John Parker under Herbert Hoover in 1930. Since LBJ, all presidents who have gotten more than one nomination had one fail, except George H.W. Bush, Bill Clinton, and Donald Trump — who nonetheless had three of the most contentious nominations in our history.

In all, of 164 nominations formally sent to the Senate (counting each submission, even if the same person), only 127 were confirmed, a success rate of 77 percent. Of those 127, one died before taking office and seven declined to serve, the last one in 1882 — an occurrence unlikely ever to happen again. Of the rest, 12 were rejected, 12 were withdrawn, ten expired without the Senate’s taking any action, and three were postponed or tabled. In other words, for various reasons, fewer than three‐​quarters of high court nominees have ended up serving.

Based on relative rates of unsuccessful nominations, the argument could be made that the nomination and confirmation process was more political during the nation’s first century than since. Both the presidency and the Court were relatively weak and the process was more of an insider’s game, with many picks based on personal loyalty and political philosophy rather than approach to the law. Of the 57 justices confirmed between 1789 and 1898, 17 lacked significant judicial experience.² As the judiciary took on a greater role, however, nominations attracted more public attention, and also more transparency. Interest groups began to matter — unions and the NAACP contributed to Parker’s 1930 rejection — as public relations became just as important as Senate relations. Politics came back into the process, but in a different way. The battle became one over ideology and public perception rather than satisfying intra‐​party or regional factions.

Confirmation Fights Are Now Driven by Judicial Philosophy

As we’ve seen over the long sweep of American history, confirmation controversies are hardly unprecedented. To a certain extent, the politicization of Supreme Court appointments has tracked political divisions nationally. But the reasons for such controversies in the last few decades are largely unprecedented. While inter‐ and intra‐​party politics have always played a role, couching opposition in terms of judicial philosophy is a relatively new phenomenon that represents a departure from the past.

Pre‐​modern controversies tended to revolve around either the president’s relationship with the Senate or deviations from shared understandings of the factors that go into nominations for particular seats — especially geography and patronage. That dynamic is markedly different from the ideological considerations we see now for at least two reasons. First, modern fights transcend any particular nominee or even president, evolving and growing and filtering into the lower courts. Second, ideological litmus tests cause more of a problem than the geographic, patronage, religious, and other past criteria because there’s no longer widespread acceptance that a president gets to have his choice as long he meets those other, more neutral criteria. With the two major parties adopting essentially incompatible judicial philosophies, it’s impossible for a president to find an “uncontroversial” nominee.

The conservative legal movement, meanwhile, has learned its lesson; “no more Souters” means there has to be a proven record, not simply center‐​right views and affiliations, showing not telling a commitment to originalism and textualism. Once you consider someone who doesn’t have a long judicial record, or at least academic writings to the same originalist‐​textualist effect, it opens the door to the sort of presidential discretion that has backfired in the past.

The entire reason candidate Trump released his list was to convince Republicans, as well as cultural conservatives who may otherwise have stayed home or voted Democrat, that he could be trusted to appoint the right kind of judges. This was a real innovation, and we could see lists become standard practice, even if candidates from the two parties might use different criteria for shaping those lists, with more concern for demographic representation among the Democrats, who have a broader swath of lawyers — if not necessarily federal judges — to choose from.

The current emphasis on judicial philosophy may well be an updating of the “real politics” approach favored by presidents in the early 1900s — except now applied to intellectual commitments instead of trying to find (or avoid) progressive Republicans or conservative Democrats. But the problem is that there aren’t really too many progressive originalists or conservative living‐​constitutionalists, at least not in any way where the ideological appellation doesn’t swallow the philosophical one. Even Merrick Garland, who’s about as much of a moderate as President Obama could find, didn’t budge the Republican Senate.

Modern Confirmations Are Different Because the Political Culture Is Different

The inflection point for our legal culture, as for our social and political culture, was 1968, which ended that 70‐​year near‐​perfect run of nominations. Until that point, most justices were confirmed by voice vote, without having to take a roll call. Since then, there hasn’t been a single voice vote, not even for the five justices confirmed unanimously or the four whose no votes were in the single digits. And despite those “easy” confirmations, we’ve seen an upswing in no votes; five of the closest eight confirmation margins have come in the last 30 years. Not surprisingly, the increased opposition and scrutiny has also signaled an increase in the time it takes to confirm a justice; six of the eight longest confirmations — and all but one that took longer than 80 days — have come since 1986. Every confirmation since the mid‐​1970s except Sandra Day O’Connor, Ruth Bader Ginsburg, and the expedited pre‐​election process for Amy Coney Barret has taken more than two months.

There are many factors going into the contentiousness of the last half‐​century: the Warren Court’s activism and then Roe v. Wade, spawning a conservative reaction; the growth of presidential power to the point where the Senate felt the need to reassert itself; the culture of scandal since Watergate; a desire for transparency when technology allows not just a 24‐​hour media cycle but a constant and instant delivery of information and opinion; and, fundamentally, more divided government.³ As the Senate has grown less deferential, and presidential picks have become more ideological, seeking to achieve a certain legal agenda or empower a certain kind of jurisprudence rather than merely appointing a good party man, the clashes have grown.

And as these philosophical battle lines have hardened, so have the media campaigns orchestrated by supporters and opponents of any given nominee. There’s a straight line from the national TV ads against Robert Bork to the tens of millions of dollars spent on the fight over Brett Kavanaugh, including sophisticated targeting of digital media to voters in states whose senators are the deciding votes. “It’s a war,” explained Leonard Leo, who now chairs the public affairs firm CRC Advisors, “and you have to have troops, tanks, air, and ground support.“⁴

To put a finer point on it, all but one failed nomination since Abe Fortas in 1968 have come when the opposite party controlled the Senate. The one exception is Harriet Miers, who withdrew because she was the first nominee since Harrold Carswell in 1969 to be seen as not up to the task. The last nominee rejected by a Senate whose majority was the same party as the president was Parker, by two votes in 1930. For that matter, this turbulent modern period has seen few outright rejections — Nixon’s two and Bork are the only ones, in 53 years — with pre‐​nomination vetting and Senate consultation obviating most problematic picks.

At the same time, the inability to object to qualifications has led to manufactured outrage and scandal‐​mongering. This was more evident before considerations of judicial philosophy became standard practice, when Bork was an outlier. “Many people sneer at the notion of litmus tests for purposes of judicial selection or confirmation — even as they unknowingly conduct such tests themselves,” Harvard law professor Randall Kennedy wrote 20 years ago. The real problem, as he saw it, was that not being able to discuss ideology led to a search for scandal. “A transparent process in which ideological objections to judicial candidates are candidly voiced,” he concluded, “is a much‐​needed antidote to the murky ‘politics of personal destruction.’ ”⁵ Sounding the same refrain at the same time was one Chuck Schumer: “The taboo [on invoking ideology] has led senators who oppose a nominee for ideological reasons to justify their opposition by finding non‐​ideological factors, like small financial improprieties from long ago. This ‘gotcha’ politics has warped the confirmation process and harmed the Senate’s reputation.“⁶

Well, that taboo no longer exists — which is a good, honest thing, because vetting a nominee’s judicial philosophy is important — and yet we still got the Kavanaugh hearings.

Hearings Have Become Kabuki Theater

Public confirmation hearings have only been around for a century, starting with Louis Brandeis’s nomination in 1916. But Brandeis didn’t testify at his own hearing; the first hearing where the nominee took unrestricted questions in an open hearing was Felix Frankfurter in 1938. It simply wasn’t regular practice until the 1950s. At that point, the hearings became a chance for Southern Democrats to rail against Brown v. Board of Education. Few senators other than the segregationists even asked the nominees questions. Otherwise, hearings became perfunctory discussions of personal biography, as with Charles Whittaker in 1957 or the man who succeeded him in 1962, Byron White. John Paul Stevens, the first nominee after Roe v. Wade, wasn’t even asked about that case — which was already controversial, have no doubt. The focus in that post‐​Fortas, post‐​Watergate time was on ethics, and he was confirmed 19 days after nomination.

Things changed in the 1980s, not coincidentally when the hearings began to be televised. Now all senators ask questions, especially about key controversies and fundamental issues, but nominees largely refuse to answer, creating what Elena Kagan 25 years ago called a “vapid and hollow charade.“⁷ But even with this conventional narrative, there has been a subtle shift; from Bork in 1987 through Stephen Breyer in 1994, nominees went into some detail about doctrine.⁸ “This is not to say that nominees during those years made commitments about how they would rule on contested legal issues. But they did discuss their judicial philosophies, their past writings and their beliefs about the role of judges.“⁹ Clarence Thomas discussed natural law and the role that the Declaration of Independence plays in constitutional interpretation. Ruth Bader Ginsburg talked about gender equality and the relationship between liberty and privacy.

Beginning with John Roberts in 2005, however, the nominees still covered the holdings of cases and what lawyers call “black letter law” — what you need to know to get a good grade in law school — but there’s been little revelation of personal opinions. The nominees speak in platitudes: Roberts and his judicial umpire, Sotomayor saying that fidelity to the law was her only guidepost, Kagan accepting that “we’re all originalists now.” President Trump’s nominees, starting with Neil Gorsuch and filtering down to lower‐​court nominees, have even been hesitant to take a view on whether iconic cases like Brown were correctly decided, lest their inability to similarly approve of another longstanding precedent (notably Roe) cast doubt on its validity.

These days, senators try to get nominees to admit that certain controversial cases are “settled law,” whether Roe when coming from a Democrat or District of Columbia v. Heller from a Republican. Of course, when you’re dealing with the Supreme Court, law is settled until it isn’t, so nominees have come to say that every ruling is “due all the respect of a precedent of the Supreme Court,” or some such. That may or may not be a lot of respect, depending on the future justice’s view of the merits and of the weight of stare decisis — the idea that some erroneous precedent should be allowed to stand to preserve stability in the law and protect reliance interests. And that’s before we even get to the “gotcha” questions, or last‐​minute accusations of sexual impropriety.

Every Nomination Can Have a Significant Impact

The actual hearings, and the confirmation process more broadly, have very little to do with being a judge or justice. Once that spectacle is over, the new justice takes his or her seat among new colleagues — a lifetime “team of nine,” as Justice Kavanaugh called it at his confirmation hearing — to begin reading briefs and considering technical legal issues. It must be a surreal experience, having run an American Ninja Warrior course to win a life of quiet contemplation and oracular pronouncements. Or, as President Trump’s first White House Counsel Don McGahn put it, “it’s a Hollywood audition to join a monastery.“¹⁰

Regardless, once you’re in, you’re in. As Justice White told Justice Thomas when the latter first joined the Court, “It doesn’t matter how you got here. All that matters now is what you do here.“¹¹ After all the nomination hoopla, the Supreme Court is still a court, albeit with a new composition that affects both internal dynamics and external results. White was also fond of saying that every justice creates a new Court, so each change shakes up the previous balance — regardless how close in “expected” philosophy a new justice might be to his or her predecessor.

That’s why every vacancy is important. Not all historically significant cases would’ve turned out differently if one justice were replaced — Marbury v. Madison and other Marshall Court cases were typically unanimous, Dred Scott was 7–2, Plessy v. Ferguson was 8–1, Korematsu v. United States was 6–3, Wickard v. Filburn was unanimous, as was Brown, while Roe was 7–2 — but some would have. And not simply by changing the party of the president making the appointment. The Slaughterhouse Cases, which eviscerated the Fourteenth Amendment’s protections against state action, were a 5–4 ruling with Lincoln appointees split 2–3, Grant appointees split 2–1, and a Buchanan appointee breaking the tie. Lochner v. New York was another 5–4, with Republican appointees split 3–3 and Democratic appointees split 2–1. The early New Deal cases typically split 6–3 or 5–4 against expansions of federal power, aligning the Four Horsemen (three Republican appointees and James Clark McReynolds) against the Three Musketeers (two Republican appointees and Brandeis), with two other Republican appointees in the middle, culminating in 1937’s “switch in time that saved nine.”

And all that’s before we get to the modern era, when we got used to first Justices Potter Stewart and Lewis Powell, then Sandra Day O’Connor and Anthony Kennedy, as the swing votes on issues ranging from affirmative action and redistricting to religion in the public square and gay rights. So many cases would’ve been decided differently had the conservative Bork been confirmed instead of the moderate Kennedy, and differently still had the libertarian Douglas Ginsburg occupied that seat. For that matter, had Edith Jones been nominated in 1990 instead of David Souter, Kennedy wouldn’t have been the median vote from 2005 to 2018; John Roberts would’ve been. And if Michael Luttig had been picked instead of Roberts in 2005 — whether as chief justice or with Antonin Scalia elevated and Samuel Alito in Scalia’s place — it would’ve been a very different Court these last 16 years.

Moreover, Court majorities are fragile and subject to affinities and clashes. Chief Justice Marshall drew people toward him who normally wouldn’t agree with him. Justice McReynolds pushed everyone away. Justice William Brennan was gregarious and a skilled tactician, often outmaneuvering Chief Justice Warren Burger. Justice O’Connor may have shaded left in response to Justice Scalia’s provocations, or to balance the arrival of the more conservative Justice Thomas.

In part because they’ve been burned so many times, Republicans focus on the Court as an election issue much more than Democrats. Bush v. Gore, Citizens United, and Shelby County, the three biggest progressive losses of the last 25 years, have riled activists and elites, and ratcheted up confirmation battles, but haven’t translated into campaigns regarding judges as such. “Republicans seem conditioned to feel that when they’re not paying attention, the courts will cause them all kinds of trouble,” Co‐​Chair Bauer once explained to me. “Democrats have come to have a similar concern, but for a long time, with visions of Warren, Brennan, Stevens and the like, they were more optimistic — maybe to a fault.“¹²

Democrats may now be catching up, even though during the Garland experience, they didn’t make much of the vacancy or the Republicans’ blockade. The result of the 2016 presidential election is that, for the first time in the modern era, and perhaps more clearly than ever, different judicial methodologies and approaches to legal interpretations line up with partisan preferences. For the foreseeable future, every Supreme Court vacancy is an opportunity to either prolong one party’s control of a particular seat or “flip” it.

Another reason why filling each vacancy is such a big deal is that justices now serve longer. In the late 1700s, when life expectancy was under 40 — skewed by infant mortality, of course — the average age of a Supreme Court nominee was about 50. In the late 1900s/​early 2000s, when life expectancy in the United States is just under 80 — more than that for those who are already in late middle age — the average age of a Supreme Court nominee is still not much above 50. And that includes the outlier Merrick Garland, who at 63 wouldn’t have been picked had it not been for the unusual situation in which President Obama tried to offer a compromise. Since 1972, only one of 16 justices (Ginsburg) was over 55 at confirmation.

To put it another way, before 1970, the average tenure of a Supreme Court justice was less than 15 years. Since then, it’s been more than 25. The life expectancy of justices once confirmed has grown from about eight years at the beginning of the Republic to 25–30 today. Justices appointed at or before age 50, like Roberts, Kagan, Gorsuch, and Barrett, are likely to serve 35 years, or about nine presidential terms, projecting the legal‐​policy impact of Presidents Bush, Obama, and Trump, respectively, as far into the future as Justices Scalia and Kennedy did for President Reagan. Justice Thomas, who was 43 when he joined the Court and has already served nearly 30 years, could serve another decade!

The Hardest Confirmations Come When There’s a Potential for a Big Shift

In addition to divided government, at a time when the Court’s ideological profile is more clearly defined, the most contentious nominations are those that threaten a shift in the Court’s jurisprudence. Replacing the centrist Powell with the conservative Bork provoked a firestorm, but putting another moderate in that seat was easy. Replacing liberal lion Thurgood Marshall with counterculture conservative Clarence Thomas was a fight, but appointing Scalia to William Rehnquist’s seat when Rehnquist was elevated was a cakewalk. Would Kavanaugh have faced such strong opposition had he been nominated for Thomas’s seat? Probably not.

There are only two obvious shifts in a more liberal direction. The first was Ginsburg’s replacement of White, but that smooth confirmation came at a time when the Democrats had a significant Senate majority (57–43), newly elected Bill Clinton was enjoying his honeymoon — remember when presidents had those? — and White himself had been appointed by a Democratic president. The second was Garland’s nomination to replace Scalia.

Think of it this way: regardless of which party controlled the Senate, would there have been as big a political firestorm last fall if President Trump were replacing Justice Thomas rather than Justice Ginsburg? Will the fight to replace Justice Breyer be fiercer under President Biden or a Republican president?

Of course, presidents aren’t always successful in moving the Court in their preferred direction. Thomas Jefferson tried valiantly to dislodge the powerful Federalist judicial impulse, only to see his nominees fall under John Marshall’s sway. Abraham Lincoln named Treasury Secretary Salmon P. Chase as chief justice, partly to get him out of his hair, but more importantly to uphold the legislation by which the federal government had financed the Civil War, and which Chase had helped draft. Instead, Chief Justice Chase wrote the opinion finding the Legal Tender Act unconstitutional. Ulysses Grant wanted to mold the Court for the post‐​Civil War world, but it took him eight nominations to seat four justices of varying quality and political direction. Teddy Roosevelt should’ve been pleased with the great progressive Oliver Wendell Holmes, but after a vote in the major antitrust case of the time, TR inveighed that “I could carve out of a banana a judge with more backbone than that.“¹³

Woodrow Wilson, a renowned scholar of jurisprudence and thus in theory more sensitive to these concerns than most other presidents, named another storied progressive, Brandeis, but also the most retrograde justice of that or possibly any time, McReynolds, who didn’t seem to share any of Wilson’s views other than with regard to antitrust (and bigotry). Calvin Coolidge’s sole nominee, Harlan F. Stone, would end up betraying his benefactor’s laissez‐​faire proclivities by joining with Justices Holmes and Brandeis in taking the Court in a judicially restrained, and therefore progressive, direction. Harry Truman called putting Tom Clark on the Supreme Court his “biggest mistake” after Justice Clark ruled against his 1952 seizure of steel mills.¹⁴ Dwight Eisenhower was disappointed with both Earl Warren and William Brennan, although the latter was more of a political calculation ahead of the 1956 election, intended to help with the Catholic (and crossover Democrat) vote. Nixon’s appointment of Harry Blackmun similarly mitigated the reversal of the Warren Court that he had hoped to achieve, particularly given that Warren Burger wasn’t a particularly strong leader and Lewis Powell became more of a moderate.

Ronald Reagan too advanced his own legal‐​policy agenda only with Scalia — elevating Rehnquist didn’t add any votes — as O’Connor and Kennedy occupied the Court’s middle rather than pushing originalism, “strict construction,” law‐​and‐​order conservatism, or any other articulation of what Republicans wanted. George H.W. Bush of course had Souter in addition to Thomas. His son, looking for reliable conservatives, checked that box with Roberts and Alito but didn’t realize that a focus on judicial restraint could also lead to an over‐​deference to Congress.

While a justice might feel “loyal to the president who appointed him,” then‐​Justice Rehnquist told a law school audience in 1984, “institutional pressures … weaken and diffuse the outside loyalties of any new appointee.“¹⁵ At the same time, he explained, “one may look at a legal question differently as a judge than one did as a member of the executive branch” — and Rehnquist would know, having been a high Justice Department official. Moreover, a nominee picked for his views on the issues of the day — government expansion under FDR, executive power over national security under George W. Bush — might act contrary to type when the issue mix changes. The judicial restraint of Felix Frankfurter, a New Deal progressive who co‐​founded the ACLU, made him a conservative in the postwar era, while John Roberts’s similar restraint leads him to defer both to a wartime president and a peacetime Congress.

The Court Rules on So Many Controversies That Political Battles Are Unavoidable

Under the Framers’ Constitution, by which the country lived for its first 150 years, the Supreme Court hardly ever had to curtail a federal law. If you read the Congressional Record of the 18th and 19th centuries, Congress debated whether particular legislation was constitutional much more than whether something was a good idea. Debates focused on whether something was genuinely for the general welfare or whether it only served a parochial or regional interest. “Do we have the power to do this?” was the central issue. In 1887, Grover Cleveland vetoed an appropriation of $10,000 for seeds to Texas farmers who were suffering from a terrible drought because he could find no warrant for such appropriation in the Constitution.¹⁶ Twenty years later, the Supreme Court declared, “the proposition that there are legislative powers affecting the nation as a whole although not expressed in the specific grant of powers is in direct conflict with the doctrine that this is a government of enumerated powers.“¹⁷

We also had a stable system of rights that went beyond those listed in the Bill of Rights. These rights were retained by the people under the Ninth Amendment — and similarly the Tenth Amendment was redundant of the whole structure of powers, which was based on the idea that we have a government of delegated and enumerated, and therefore limited, powers.

Judges play bigger roles today; as the Court has allowed the government to grow, so has its own power to police the federal programs its own jurisprudence enabled. For example, the idea that the General Welfare Clause justifies any legislation that gains a majority in Congress — as opposed to limiting federal reach to national issues — emerged in the Progressive Era. In 1935, FDR wrote to the chairman of the House Ways and Means Committee, “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.“¹⁸ Decades later, Rexford Tugwell, a New Deal architect, wrote that “to the extent that these [policies] developed they were tortured interpretations of a document intended to prevent them.“¹⁹ In the 1930s and ’40s, we thus had the perverse expansion of the Commerce Clause with cases like NLRB v. Jones & Laughlin and Wickard v. Filburn, which gained renewed prominence in the constitutional debate over Obamacare. After the “switch in time that saved nine,” when the Court began approving grandiose legislation it had previously rejected, no federal legislation would be set aside as going beyond congressional power until 1995.

We also had the flipside of the expansion of powers: the warping of rights. In 1938, the infamous Footnote Four in the Carolene Products case bifurcated our rights such that certain rights are more equal than others in a kind of Animal Farm approach to the Constitution. So it’s the New Deal Court that politicized the Constitution, and thus also the confirmation process, by laying the foundation for judicial mischief of every stripe — but particularly in letting laws sail through that should be invalidated. The Warren Court picked up that baton by invalidating laws in areas that are best left to the political branches, micro‐​managing cultural disputes in a way that made the justices into philosopher kings, elevating and sharpening society’s ideological tensions.

In that light, modern confirmation battles — whether you look at Bork, Thomas, the filibustering of George W. Bush’s lower‐​court nominees, the scrutiny of Sotomayor’s “wise Latina” comment, or the party‐​line votes on Trump’s appointees — are all part of, and a logical response to, political incentives given judges’ novel expansive role. When judges act as super‐​legislators, the media and the public want to scrutinize their ideology for that very reason.

As Roger Pilon wrote presciently nearly 20 years ago, “Because constitutional principles limiting federal power to enumerated ends have been ignored, the scope of federal power and the subjects open to federal concern are determined now by politics alone. Because the rights that would limit the exercise of that power are grounded increasingly not in the Constitution’s first principles but in the subjective understandings of judges about evolving social values, they too increasingly reflect the politics of the day.“²⁰

The ever‐​expanding size and scope of the federal government has increased the number and complexity of issues brought under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision‐​making authority to the courts. The imbalance between the executive branch and Congress — especially the latter’s abdication of its leading constitutional role by delegating what would otherwise be legislative responsibilities — has made the Supreme Court into the decider both of controversial social issues and complex policy disputes. Senator Ben Sasse (R‑Neb.) wrote about this dynamic in a Wall Street Journal op‐​ed adapted from his opening remarks at the Kavanaugh hearings:

In other words, Congress doesn’t complete its work so it can pass the political buck to a faceless bureaucracy, and to a judiciary that ultimately has to evaluate if what these alphabet agencies come up with is within spitting distance of what the Constitution allows. What’s supposed to be the most democratically accountable branch has been punting its duties and avoiding hard choices since long before the current polarization.

Gridlock is a feature of a legislative process that’s meant to be hard by design, but compounded of late by citizens of all political views being fed up with a situation where nothing changes regardless of which party is elected. Washington has become a perpetual‐​motion machine — and the courts are the only actors able to throw in an occasional monkey wrench. “Punting difficult issues to the Court is not a new thing,” noted C. Boyden Gray, White House counsel under President Bush I, adding that Alexis de Tocqueville had recognized the dynamic in the 1830s. “What’s made it so fraught is the way the administrative state has been used the last two decades.“²² That’s why people are concerned about the views of judicial nominees — and why there are more protests outside the Supreme Court than Congress.

Possible Changes to the Confirmation Process

Setting aside potential changes to Supreme Court structure, the subject of other panels, what about reforming the confirmation process? Should we have rules for how many days after a nomination there must be a hearing and then a vote? Maybe we should consider restoring the filibuster for nominees — although Gorsuch was the first and only Supreme Court nominee subjected to partisan filibuster. (Recall that Justice Fortas lacked even a bare majority of announced support for his elevation to chief justice, while Justices Thomas and Alito were confirmed with fewer than 60 votes.) Of course, if we had the political alignment for these kinds of changes, we wouldn’t have the toxic atmosphere we’re in, so it’s a chicken‐​and‐​egg problem.

Henry Saad, a former Michigan court of appeals judge whose nomination to the Sixth Circuit was filibustered under George W. Bush, has proposed a number of reforms to the nomination and confirmation process, most of which are only relevant to the lower courts.²³ For example, he suggests that each of the three branches should have a committee for evaluating judicial candidates, as should each state, and federal judges themselves should conduct interviews and issue ratings (in lieu of the discredited American Bar Association). I’m not sure how realistic these pre‐​nomination proposals are, both in light of political realities — some states already have commissions, particularly for district judgeships, but that system breaks down when the relevant senators are opposed to the White House — and the constitutional powers of presidential appointment and senatorial advice and consent. And how many judges would really want to evaluate their future colleagues, even if their reports are supposed to say confidential?

With respect to reforms that would apply equally to Supreme Court nominees, Saad would make it a violation of judicial ethics for nominees to give their opinions about a case, while making hearings untelevised, with questions submitted in writing, restricted to professional qualifications, and asked by the chief counsel for each party’s judiciary committee members. Some committees allow this in other contexts, and while it didn’t seem to work very well for Republicans in the supplemental Kavanaugh hearing, that was largely a function of the five‐​minute increments the counsel questioning was forced into. Any personal information or ethical concerns could be handled in the confidential session that the judiciary committee already has to discuss the FBI background investigation and other sensitive matters.

These sort of post‐​nomination proposals are healthy, because they target the spectacle that confirmations have become, with senators either not equipped to handle the required lines of questioning or grandstanding to produce a gotcha moment, or at least B‑roll for campaign videos. “It’s like testifying in a restaurant,” quipped former White House counsel Don McGahn, with photographers clicking away in front and protestors haranguing in the back.²⁴ And it’s not like we learn anything about nominees, who are now coached to avoid saying anything newsworthy.

I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose for a century but now inflict greater cost on the Court, Senate, and rule of law than any informational or educational benefit gained. Given the voluminous and instantly searchable records nominees have these days — going back to collegiate writings and other digitized archives — is there any need to subject them, and the country, to a public inquisition? At the very least, the Senate could hold nomination hearings entirely in closed session.

Outside‐​the‐​box thinking should be commended and proposals to improve confirmation processes shouldn’t be discounted lightly, especially if cosmetic or easy changes would enhance public confidence in the Court’s integrity. I’m willing to consider anything that would show that there’s a difference between interpreting the law and making it, between judging and legislating.

But I’m not sure any of these formalistic changes would do anything given that it’s not a breakdown in the rules that caused the poisonous atmosphere surrounding nominations, but the other way around. Senators have — correctly — come to see judges as just as much or more important than legislation, so they started applying the same bareknuckle political plays to them.

In the end, all of this “reform” discussion boils down to re‐​arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem we face, and that the Supreme Court faces, is the politicization not of the process but of the product. The only way judicial confirmations will be detoxified, and the only way we reverse the trend whereby people increasingly see judges as “Trump judges” and “Obama judges,” is for the Supreme Court to restore our constitutional order by returning improperly amassed federal power to the states, while forcing Congress to legislate on the remaining truly national issues rather than letting bureaucratic rules govern us.

As one Court watcher wrote a quarter‐​century ago, “Today’s confirmation battles are no longer government affairs between the President and the Senate; they are public affairs open to a broad range of players. Thus, overt lobbying, public opinion polls, advertising campaigns, focus groups, and public appeals have all become a routine part of the process.“²⁵ Those trends have only accelerated in the intervening 25 years, such that Supreme Court nominations are perhaps the highest‐​profile set‐​pieces in the American political system. Not even set‐​pieces but months‐​long slogs. Once the inside game of picking the nominee ends — that traditional dance between president and Senate — the outside game begins, culminating in the literally made‐​for‐​TV hearing and then a vote that, as we learned with Justice Kavanaugh, can be just as dramatic.

It’s not good, but we’ve gotten here because Congress and the presidency have gradually taken more power for themselves, and the Supreme Court has allowed them to get away with it, aggrandizing itself in the process. As the Court has let both the legislative and executive branches swell beyond their constitutionally authorized powers, so have the laws and regulations that it now interprets. Competing theories battle for control of both the U.S. Code and Federal Register, as well as determining — often at the whim of one “swing vote” — what rights will be recognized. As we’ve gone down that warped jurisprudential track, the judiciary now affects the direction of public policy more than ever. So of course judicial confirmations are going to be fraught, particularly as competing interpretive theories essentially map onto political parties that are more ideologically coherent than ever.

That’s also why the judicial nomination and confirmation processes are more cognizant of partisan considerations. This wasn’t as much of a problem when partisanship mainly meant rewarding your cronies. But it’s a modern phenomenon for our parties to be so ideologically polarized, and therefore for judges nominated by presidents from different parties to have notably different views on constitutional interpretation.

There are two big buckets of cases where that dynamic has contributed to the ratcheting up of tensions that has both crumbled Senate norms in considering and filtered down into lower‐​court nominations: (1) cultural issues, ranging from abortion and LGBTQ issues to the Second Amendment and death penalty, and (2) what I’ll call “size of government” issues, which encompasses everything from environmental regulations to Obamacare, guidance documents to enforcement practices. And then there’s an overlay of “structural” cases: Bush v. Gore, Citizens United, Shelby County, and partisan gerrymandering — whose legal issues in the abstract shouldn’t have partisan valence, but in the real world of American politics obviously do.

As the response of the conservative legal movement to various judicial provocations has shifted, the debate over that constellation of issues has crystallized. From calls for restraint in the face of the Warren Court’s making up social policy out of whole cloth — which ultimately led to too much deference to the political branches, and thus a long term loss for constitutional governance — the focus now is on engaging the law, which often calls for invalidating the laws being reviewed instead of exercising what Alexander Bickel called the “passive virtues.” Indeed, “activism” has become a vacuous term that conveys only disagreement with the judge or opinion being criticized. The battle has been joined over the legal theory rather than judicial process.

That is, so long as we accept that judicial review is constitutional and appropriate in the first place — how a judiciary is supposed to ensure that the government secures and protects our liberties without it is beyond me — then we should only be concerned that a court “gets it right,” regardless of whether that correct interpretation leads to the challenged law being upheld or overturned. To paraphrase John Roberts at his confirmation hearings, the “little guy” should win when he’s in the right, and the big corporation should win when it’s in the right. The dividing line, then, is not between judicial activism (or passivism) and judicial restraint, but between legitimate and vigorous judicial engagement and illegitimate judicial imperialism.

It’s a generational battle: do you get into the fight over federalism and the separation of powers or do you sit back and let the political branches handle that sort of thing, preferring not to mess up your judicial robes? And that gets us back to the debate over the administrative state, regarding deference doctrines, congressional delegation of legislative powers, and even more arcane areas of regulatory law. Which is why judicial selection is so consequential. “If you get the administrative stuff right, everything else will fall into place,” McGahn emphasized to me.²⁶

In any event, the balanced Court that we were accustomed to, with one or two human jump‐​balls between separate ideological blocs, is done. The Court is moving right, with the chief justice as the median vote for the first time in half a century. While Chief Justice Roberts will have even more incentive to indulge his minimalist fantasies and lead the Court from the squishy commanding heights, he is a surer vote for conservatives — maybe not libertarians — than Justice Kennedy was. What that means in the long term only time will tell, though of course Roberts was the median vote for only two years, and this past term revealed a Court in flux, with grand compromises and heterodox alignments that one point had pundits calling it the “Breyer Court.”

But the judicial debates we’ve seen the last few decades were never really about the nominees themselves — just like proposals for court‐​packing and the like aren’t about “good government.” They’re about the Court’s direction. The left in particular needs its social and regulatory agendas, as promulgated by the executive branch, to get through the judiciary, because they would never pass as legislation at the national level. That’s why progressive forces pull out all the stops against originalist nominees who would enforce limits on federal power. Indeed, all of the big nominee blowups in modern times — since the bipartisan opposition to Abe Fortas — have come with Republican appointments. The one quasi‐​exception didn’t involve any attacks on the nominee, but the rare case of an election‐​year vacancy arising under divided government; Merrick Garland would’ve been confirmed had Antonin Scalia died a year earlier.

Not that any of this is a good thing. “I really, really don’t like where we are right now,” sighed former solicitor general Don Verrilli, who had worked on nominations under Presidents Clinton and Obama and laments the evermore tense atmosphere. “Something needs to be done to change the situation.“²⁷ If nominations were depoliticized, whether through term limits or any other reforms, or some unpredictable shock that recalibrated norms, that would likewise depoliticize the exercise of judicial power, both in perception and reality.

But term limits would take a constitutional amendment and everything else is either completely unworkable or doesn’t actually solve the identified problem. We can’t just wave a magic wand and go back to some halcyon age where the issues we faced as a country, the development of the law, and the political dynamic, were all different. “If they could truly, truly go back, I hear from most senators that they would prefer a return to the pre‐​nuclear‐​option days,” observed Ron Klain, who has significant experience working on judicial nominations in the Clinton and Obama administrations, and is now chief of staff to President Biden, “but in many ways, it’s easier for them now, because there’s very little constituency for voting for the other party’s nominees.“²⁸

The only lasting solution to what ails our body juridic is to return to the Founders’ Constitution by rebalancing and devolving power, so Washington isn’t making so many big decisions for the whole country. Depoliticizing the judiciary and toning down our confirmation process is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backwards to ratify the constitutional abuses of the other branches.

The judiciary needs to once again hold politicians’ — and bureaucrats’ — feet to the constitutional fire by rejecting overly broad legislation of dubious constitutional warrant, thus curbing executive‐​agency overreach and putting the ball back in Congress’s court. And by returning power to the people, while ensuring that local majorities don’t invade individual constitutional rights. After all, the separation of powers and federalism exist not as a dry exercise in Madisonian political theory but as a means to that singular end of protecting our freedom.

These structural protections are the Framers’ brilliant best stab at answering the eternal question of how you empower government to secure liberty while also building internal controls for self‐​policing. Or, as Madison famously put it in Federalist 51, his disquisition on man’s non‐​angelic nature, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Ultimately, judicial power is not a means to an end, but an enforcement mechanism for the strictures of a founding document intended just as much to curtail the excesses of democracy as to empower its exercise. In a country ruled by law, and not men, the proper response to an unpopular legal decision is to change the law or amend the Constitution. Any other method leads to a sort of judicial abdication and the loss of those very rights and liberties that can only be vindicated through the judicial process. Or to government by black‐​robed philosopher kings — and as Justice Scalia liked to say, why would we choose nine lawyers for that job?

The reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse, and pluralistic country. There’s no more reason that there needs to be a one‐​size‐​fits‐​all health care system, for example, than that zoning laws must be uniform in every city. Let federal legislators make the hard calls about truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.