The Senate has confirmed Judge Ketanji Brown Jackson to be Associate Justice of the Supreme Court, making her the first Black woman to serve on the nation’s highest court. White men for the first time in the Court’s history no longer constitute a majority of the bench.
A largely partisan affair
Jackson’s 53-47 confirmation vote was nominally bipartisan. All 50 Democrats voted to confirm, keeping up the recent trend of near lockstep support from the president’s party for Supreme Court nominees. In fact, Robert Bork’s failed confirmation vote in 1987 was the last time more than a handful of the president’s partisans (six, to be exact) opposed their own party’s nominee.
But just three Republican senators — Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — crossed the aisle to support Jackson. As the figure below suggests, such partisan confirmation fights are the norm today. It’s been 30 years since a Supreme Court nominee — Ruth Bader Ginsburg, appointed by Democratic President Bill Clinton in 1993 — secured the votes of nearly every Republican senator. Since then, opposition party support has fallen off sharply.
By securing three GOP votes, the Senate’s treatment of Jackson most closely resembles that of Neil M. Gorsuch: Three moderate Democrats in 2017 supported President Donald Trump’s conservative pick. By picking up GOP votes, Jackson avoided the fate of Trump’s third Court nominee: Amy Coney Barrett, nominated and confirmed in the weeks before the 2020 election. By failing to get any support from Democrats, Barrett became the first nominee confirmed since 1869 without any opposition party support.
Tit for tat
Certainly, one of the reasons confirmation battles have become so polarized is that the parties have diverged ideologically. As the federal courts have become central to resolving disputes on issues of core importance to the parties — from reproductive rights to affirmative action and voting rights — party disagreements on salient issues infuse battles over who should sit on the federal bench.
But more than ideological disagreement undergirded GOP opposition. Sheer partisan tit-for-tat behavior appeared to motivate many in the GOP. Republican senators during Jackson’s confirmation hearing suggested it was payback time for perceived injustices meted out by Democrats against Republican presidents’ court nominations.
Sen. Lindsey O. Graham (R-S.C.) interrogated Jackson over her religiosity, suggesting he was giving Democrats a taste of their own medicine given what he called their “offensive” treatment of Barrett in 2020. Sen. Charles E. Grassley (R-Iowa) decried what he called the Democrats’ poor treatment of Kavanaugh in his 2017 hearing. And Sen. Ted Cruz (R-Tex.) dredged up comparisons to Democrats’ treatment of President Ronald Reagan’s nominee Robert Bork more than 30 years ago.
Coupled with GOP attacks on Jackson as “pro-pedophile” and “soft on crime,” it seems the strategy of Republicans on the Justice Committee was to sour their Senate colleagues’ attitudes toward Jackson by leaning on partisan grievance politics. True, media accounts and even prominent conservatives discredited the attacks as untruthful smears. But the tactics gave their party colleagues a way to frame their opposition to Biden’s historic nominee in terms likely to appeal to voters back home.
A popular nominee
Jackson was notably more popular than recent nominees. Gallup polls on the 11 Supreme Court nominees going back to 1991 show that on average about half the public supported confirmation. In contrast, one reputable poll conducted after Jackson’s hearing reported that two-thirds of respondents wished to see her confirmed — including 95 percent of Democrats and two-thirds of independents.
We know from past political science research that senators are more likely to vote for a nominee the greater the nominees’ support back home. But Senate rules changed in 2017: Senators can no longer filibuster Supreme Court nominees. That means presidents no longer need to nominate candidates who can secure broad public support beyond their party — so long, that is, as their own party controls the Senate. Only presidents’ partisans need to sign on.
That raises a key question: Should Democrats lose control of the Senate in 2022 midterm elections, would Republicans even hold confirmation hearings for another Biden nominee? As most who are reading this will recall, they refused to hold hearings for 10 months on President Barack Obama’s nominee to replace Justice Antonin Scalia, Merrick Garland — thus leaving a Supreme Court seat open for Trump to fill after he won the 2016 election. Senate GOP leader Mitch McConnell refuses to commit, and Democrats are not holding their breaths.