This summer, members of the public not consumed by the daily drama of presidential tweets and the ins-and-outs of the Mueller investigation, turned their attention to the Supreme Court. With the retirement of Justice Anthony Kennedy, who was often a swing vote, the appointment of Brett Kavanaugh raised the possibility of a solidly conservative Supreme Court for the first time in decades. Although an allegation of sexual assault from his days at Georgetown Prep threatened to derail the Kavanaugh train, Republican senators have largely stayed on board. Most court-watchers still expect him to be confirmed on a largely party-line vote.
Things weren’t always this way. Until relatively recently, Supreme Court Justices were virtually always confirmed by overwhelming bipartisan majorities. Justice Scalia was confirmed 98-0. Justice Kennedy was confirmed 97-0. Even Justice Ruth Bader Ginsburg was confirmed with only three senators voting against her. Before the 1960s, most Justices were confirmed by voice votes, and Supreme Court confirmation hearings—if they occurred at all—received little public attention. The now-routine expectation that every Supreme Court nomination should be decided along partisan lines is really only a product of the last ten years.
On one view, the problem with our Supreme Court nomination process is that it has become hopelessly partisan. In a functional system, qualified nominees within the mainstream of legal thought would be confirmed with wide bipartisan support, as was the case for most of our history. But—even though both parties now generally view judicial nominations through a partisan lens—the two parties do not seem to be playing the same game. Conservative voters (and organizations) care more about the judiciary than their counterparts on the left. In the most recent presidential election, for example, among the one-fifth of the voters who said the Supreme Court was the single most important issue driving their voting decisions, 56 percent voted for Donald Trump. In other words, the portion of the electorate that is most motivated by judicial politics is disproportionately conservative. And it shows, not only in voting patterns but also in party discipline around confirmation votes.
Our current judicial-nomination process is unhealthy for both the judiciary itself and our democracy. It tends to make judges more partisan. While some legal scholars insist that there is no clear line between law and politics, there is a difference in most cases between lawmaking (which, in a democracy, should primarily be the function of elected politicians) and the application of law to particular cases—the domain of the courts. Judges who understand themselves primarily in partisan terms are likely to be poor judges.
The politicization of our judicial-nomination process also distorts our democracy by moving such nominations to the center of our politics, especially in presidential elections. This trend has been exacerbated in recent years by longer tenures of Supreme Court Justices. Because of increasing life spans and younger nominees, the average term of the typical Supreme Court Justice has doubled since 1900; it now stretches over a quarter century. As the tenure of Supreme Court Justices grows longer, so does the length of time between nominations, making the stakes for each nomination that much higher. While judicial nominations (particularly for the Supreme Court) are undoubtedly important, it is worth asking whether it is a healthy thing in a democracy for them to be the most important consideration for a fifth of the electorate. After all, the president—and the federal government as a whole—do many other important things.