It’s painful to watch the Republican senators’ cynical hectoring of Ketanji Brown Jackson, but the process is nevertheless instructive. For one thing, it confirms my long-held view that confirmation hearings for Supreme Court nominees are a bad idea. More important, the treatment being accorded Jackson — and the cynical hectoring of past nominees by Democrats — is a reminder of the terrible damage democracy suffers when our politics become centered on Washington, D.C.
Supreme Court confirmation hearings became a regular feature of the political landscape only in the 1950s, a time when the nation was sharply split over burgeoning demands for an end to racial segregation. And, yes, the Dixiecrats and the McCarthyites got their shots in. But overall, despite the divisions of the time, hearings were brief and the questioning tended toward the perfunctory.
What’s changed? Politics is no longer local.
In his important 2018 book “The Increasingly United States: How and Why American Political Behavior Nationalized,” the political scientist Daniel J. Hopkins points to the problem: With the attention of local voters nowadays focused heavily on Washington, D.C., elected officials can no longer rely on such traditional tools as constituent service to retain their offices. They have to seize whatever opportunities arise to signal their views on national issues.
Although Hopkins doesn’t discuss Supreme Court nominations, his model fits them perfectly. Recent work has found a relationship between the vigor with which a senator questions a nominee and voter opinion about confirmation in the senator’s home state. The same research shows that senators who doubt that they can’t block a nominee press especially hard. This behavior, too, is probably aimed at voters back home: “At least I tried,” the senator can say when reelection time rolls around.
Do the voters care? Once upon a time, maybe they didn’t. In the age of nationalized politics, they surely do. In her fascinating 2010 book “Battle over the Bench: Senators, Interest Groups, and Lower Court Confirmations,” the political scientist Amy Steigerwalt reminds us that most federal judicial nominations sail through the Senate. One of the few ways to derail them is for interest groups to succeed in making them salient to the public — that is, to get voters to pay attention. On the other hand, writes Steigerwalt, “all Supreme Court nominations are highly salient to the president, senators, interest groups, and the public.” Voter attention is now baked into the process.
On top of this, the nominees themselves have changed. For more than half a century, the research tells us, the influence of the nominee’s qualification on Senate voting has been shrinking and the influence of the nominee’s “ideology” has been growing. Small wonder: As the parties have grown more polarized, nominees “are apt to be quite distant ideologically from most senators of the opposite party.”(1) And although the fit isn’t perfect, a nominee who’s ideologically distant from a particular senator is probably just as distant from the majority of voters in the senator’s home state.
Thus we see the building blocks in place: The nationalization of politics leads senators to follow their constituents by focusing on national issues, nominations to the Supreme Court are highly salient, and the level of local ideological disapproval of the other party’s nominees is likely to be high. Senators seeking re-election quite rationally use the opportunity to showcase their alignment with the preferences of their voters. And even if voters see no more than a snippet on cable news, the research suggests that the more political news voters watch — even if what they’re watching is itself intensely ideological — the more information they gain about the actual positions of political candidates.
It matters, too, that confirmation hearings are held in the Senate. Senators have a particularly urgent need to signal their positions. Hopkins, in his book on nationalization, points out the paradox that although voters are still more likely to know the names of their governors than those of their senators, and even though governors have far more influence over the day-to-day lives of voters, Senate races draw “at least 75 percent more money than gubernatorial races during the same cycle.”
And so the hectoring of the opposite party’s nominees, although ugly and often nasty, turns out to be a predictable and even rational act of electoral self-protection, which helps explain why both parties engage in it. But here, as so often, what’s good for political advantage turns out to be bad for democracy. Most of us, I hope, would prefer to live in a political world where the solemn duty to consider a nominee’s fitness for the Supreme Court would lead to high-minded and thoughtful debate as our elected officials rose above self-interest of the sort that leads to the televised slinging of mud.
That won’t happen as long as politics are all national and voters’ attention is scarce. If that genie’s not going back into the bottle, the next best idea would be to abolish the requirement that the nominee sit for senators’ questions. If we’re not prepared to do either of those things, the next vacancy will deliver more of what we profess to hate.
More from other writers at Bloomberg Opinion:
• Confirmation Hearings Are Democratic Rituals: Jonathan Bernstein
• Ketanji Brown Jackson Belongs on the Supreme Court: Editorial
(1) The same research suggests that from the 1930s through the 1980s, Democratic presidents tended to choose ideological liberals and Republican presidents tended to choose ideological moderates. This distinction vanished under Ronald Reagan.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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