The deep partisan divide over Justice Brett M. Kavanaugh’s bitter confirmation hearing remains, even months later. A toxic cloud hangs over the Senate Judiciary Committee, and once-routine processes (like setting hearing dates for judicial nominees) are now sharply contested.
But if our current nomination and confirmation process for Supreme Court justices is broken, as many have suggested, it is not because it has become more political than it used to be. Instead, history shows that the appointment process may actually be less political than it was during the 19th century. But transformations during the 20th century have gradually left politics and ideology as the main battleground in confirming judges, leaving the false impression that the process is far worse than in the past.
During the first century or so of the Supreme Court’s history, selecting and confirming judicial nominees was political and sharply contentious. From the start, presidents picked nominees whom they assumed generally agreed with their political philosophy, and some, such as Andrew Jackson and Abraham Lincoln, even rewarded cronies with seats on the court. Unlike today, many nominees for the court lacked prior judicial experience. In fact, of the 57 justices nominated and confirmed between 1789 and 1898, 17 lacked substantial judicial experience at either the state or federal level. Instead, they were private attorneys, legislators or Cabinet secretaries.
Perhaps the best evidence that the nomination and confirmation process long existed within the rough and tumble world of politics was the high number of unsuccessful nominees. For the first century or so of the nation’s history, close confirmation battles and unsuccessful nominations (including nominees withdrawn, postponed or upon which the Senate failed to act) were a regular occurrence.
Because the presidency as an institution was relatively weak, the Senate seemed to assert its power more forcefully than it does today. During 1844-1845, President John Tyler set the ignominious record of four unsuccessful nominees. A states’ rights Democrat who had run with the Whig William Henry Harrison, Tyler became the first vice president to ascend to the presidency after the death of a president, and his accidental status as president and troubled relationship with Senate Whigs doomed all but one of his nominees.
Later 19th century presidents Millard Fillmore and Ulysses S. Grant each had three unsuccessful court nominees, and Grover Cleveland had two. Overall, between 1789 and 1898, 18 out of 83 nominees failed to make it through the confirmation process.
In the 20th century, however, the process and care given to selecting judges changed and the power of the presidency grew, reshaping the confirmation process.
As the court took on an increasingly important role in national life, nominations and confirmations began attracting greater public attention. The 19th century process had been an insiders’ game, with the deliberations of the Senate Judiciary Committee largely shrouded in secrecy. In the early 20th century, however, mass media and interest groups helped bring the process into the open. Woodrow Wilson’s 1916 appointment of the progressive Louis Brandeis, the first Jewish nominee, prompted unprecedented press coverage and the first major confirmation battle of the 20th century.
In 1930, organized labor and the NAACP were the first interest groups to wield significant influence in the process when they successfully mobilized to defeat Herbert Hoover’s nomination of John J. Parker. In the same way that they began to influence the justices more regularly by submitting amicus (“friend of the court”) briefs, organized interest groups began routinely weighing in on nominees.
By the second half of the 20th century, the nomination and confirmation process reflected three trends, all of which still hold today. First, the tendency toward a more transparent process continued unabated. Nominees began testifying before senators during the 1950s, and beginning with Sandra Day O’Connor in 1981, they began doing so under the glare of television lights. Nominees thus came into the public eye like never before, prompting the need for them to receive careful preparation from presidential advisers.
In the meantime, presidents began waging public relations campaigns in support of their picks. To blunt the effort against his 1987 nomination of Robert H. Bork, which included a television ad campaign, Ronald Reagan made 33 public statements on behalf of his nominee. Now presidential administrations carefully stage-manage the unveiling of a potential justice, and the confirmation process occurs within the context of a social media-saturated environment that further contributes to the public perception of justices as political actors.
Second, at the same time that the process grew more open, nominees became more professional. Earl Warren, who went from the governorship of California to the chief justice’s seat as the result of a political promise made to him by Dwight D. Eisenhower, was the last chief justice who lacked judicial experience. Abe Fortas, appointed by his friend Lyndon B. Johnson in 1965, represented the last of the crony nominees, while Lewis F. Powell Jr., appointed by Richard M. Nixon in 1971, was the last attorney in private practice to go directly to the court. Since the 1970 appointment of Harry A. Blackmun, all but one nominee has had some judicial experience and almost all have come from top law schools.
Third, as the rise of an elite, professionalized court took the question of judicial qualifications off the table, nominations took on a more overtly ideological cast. Beginning with the New Deal, the American legal establishment leaned left, and the Supreme Court under Warren and his successor Warren E. Burger exemplified its priorities. Between the early 1950s and early 1970s, the justices ended legal segregation, intervened in malapportioned legislatures, promoted the separation of church and state, expanded the rights of criminal defendants and established a right of personal privacy, including a limited right to an abortion.
During the early 1980s, the conservative minority within the legal academy formed the Federalist Society with the long-term goal of rolling back some of these changes, which they believed rested on a tenuous constitutional foundation, by advancing the notions of textualism and originalism. In doing so, conservatives constructed a counter-legal establishment — an infrastructure within law schools and the legal profession — that began to systematically groom judicial nominees.
The combination of a professional and ideological judiciary became most evident in 2005, when President George W. Bush attempted to nominate White House Counsel Harriet E. Miers for a seat on the high court. The product of a nonelite law school who lacked judicial experience, Miers ran into immediate bipartisan opposition — both for her lack of qualifications and her closeness to the president. Bowing to the realities of the modern process, Bush quickly withdrew the nomination and chose instead a federal judge with elite credentials, Samuel A. Alito Jr., who also happened to possess the Federalist Society’s stamp of approval.
In an unprecedented move, as a candidate for president in 2016 Donald Trump pledged to select justices from a list that had been prepared by these conservative organizations. Because of his political success in doing so — maintaining the support of many establishment Republicans despite the anti-establishment tone of much of his presidency — he will certainly not be the last candidate of either party who will pledge to appoint justices from a preapproved list.
Contrary to the conventional wisdom, our currently polarized process did not develop overnight. We are not experiencing contentious court battles because of how Republicans treated Merrick Garland in 2016 or even because of how Democrats treated Bork in 1987. Instead, our always-political nomination and confirmation process has simply evolved with our society and our politics — it’s more open, as well as more professional and more ideological.
Although none of these trends is likely to be reversed in the foreseeable future, public opinion, of course, is the ultimate check on the system. Even though today’s justices probably produce more intellectually substantive and skillfully written opinions than at any time in the history of the court, there may be a limit to the public’s patience with ideological polarization.