Why the Fight for the Supreme Court Became So Ugly

In a new documentary, called “Supreme Revenge,” airing Tuesday night on PBS, FRONTLINE goes back decades to tell the story of how the Supreme Court confirmation process has become an all-out, hyper-partisan war.

Starting with the failed nomination of President Ronald Reagan’s Supreme Court nominee Robert Bork in 1987, the film focuses on the role played by Sen. Mitch McConnell (R-Ky.) and the Federalist Society to create the conservative-dominated Court we have today. After looking at the impact of the Clarence Thomas/Anita Hill hearings and the Republican stonewalling of Merrick Garland, it ends with the searing confirmation battle for Brett Kavanaugh.

Just Security’s Kate Brannen and Steve Vladeck reviewed the film and discussed the movie’s themes, the history it covers and the major players involved in the following Q&A (with Kate asking Steve the questions).

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Would you trace this story’s starting point to Bork? Or would you begin somewhere else?

It depends on which story we’re talking about. It’s a well-debunked myth that Supreme Court nominations have only become partisan over the last few decades. To me, what was especially novel about the Bork nomination was the extent to which the merits of (and opposition to) his confirmation were litigated in public—on television, on the radio, and in the press. More than any nomination beforehand, the Bork nomination galvanized ordinary people to care about the Supreme Court—and to care about how Justices were chosen, for what reasons, and by whom.

Not every SCOTUS nomination has been an all-out war between the two parties. The nominations of Alito, Roberts, Kagan, Sotomayor, Gorsuch were all relatively uneventful… Are Democrats really engaging in character assassination as Republicans allege?

I’ve always thought of Supreme Court nominations as being about two major things: The nominee’s suitability for the Court and the impact the nominee would have on the Court. Sometimes, nominations go smoothly because there’s just no question as to suitability. Sometimes, nominations go smoothly because the nominee, if confirmed, would not actually move the Court that far in any particular direction. That’s why the stakes of some nominations seem so much higher; Bork was nominated to succeed a moderate (Lewis Powell); Thomas was nominated to succeed a liberal (Thurgood Marshall); and Kavanaugh, of course, was nominated to succeed Anthony Kennedy. Those are all pretty significant shifts in the Court’s direction long before we get to the suitability of each case. To my mind, at least, it should still be possible to have relatively uneventful nominations in cases that don’t portend such an impact to the Court’s ideological balance.

The movie paints a picture of a downward spiral of dysfunction when it comes to SCOTUS nominations with a few key moments, Bork, Thomas’ confirmation, and Scalia’s death/Merrick Garland? Are there any other key moments you’d highlight?

It’s understandable, but I think the movie downplays the relevance of partisan rancor over circuit court nominees, which is where most of the battle was joined throughout the 1990s and 2000s (there wasn’t a vacancy on the Supreme Court between 1994 and 2005—the second-longest vacancy-free period in the Court’s history). I think much of the dysfunction that the public sees today in the context of Supreme Court nominations has its roots in, or at least was exacerbated by, some of the more significant disputes over some of President Bill Clinton’s nominees to the Courts of Appeals, and then a number of President George W. Bush’s nominees. Democrats blame Republicans for the most egregious escalations, and vice-versa. But whoever started it, I don’t think it’s possible to fully appreciate the complete breakdown in trust and faith across the aisle without filling in more details about the wars over the lower courts in between the Breyer and Roberts confirmations.

How important was Kennedy’s resignation to the future of the court?

When we look back, I think we’ll see three different ways in which Kennedy’s resignation was a turning point for the Supreme Court.

First, and most obviously, he had spent the better part of 12 years, since Justice O’Connor retired in 2006, as the Court’s swing vote, at least largely because Kennedy himself was somewhat idiosyncratic in his views and his approach to different questions of constitutional law and interpretation. Replacing him with a Justice who is more consistently committed to a particular judicial philosophy (and particular modalities of constitutional interpretation) was inevitably going to move the Court in the new Justice’s direction—and increasingly leave Chief Justice John Roberts as the median vote.

Second, and related, replacing Justice Kennedy necessarily polarizes the Court. As I wrote for Politico last month,

because of both the substance of his views and the extent to which they were the median position on the Supreme Court for the better part of the last 12 years, Kennedy was often a moderating influence on his colleagues—who usually needed his vote in order to reach a judgment in the more politically divisive cases, and who needed his analytical support in order to form a majority to endorse a controlling legal rationale.

Without Kennedy, there’s less of a reason for Justices to be conciliatory in either their reasoning or their tone—and more reason for the Court to push toward the extremes anytime it has five votes. We’ve already seen that this Term in the unusually public feud among the Justices over eleventh-hour death penalty cases, and I think we’re in for a lot more of that in the years to come.

Third, I also think Kennedy’s resignation was important for public perception of the Court. He resigned in the middle of the Trump administration, clearly intending for President Trump to name his successor, having just provided the swing vote for President Trump’s travel ban, and knowing that his successor would move the Court meaningfully to the right. For those who already perceived the Court as moving sharply to the right, all of these factors only served to reinforce the view of the Court as not only a political institution, but an increasingly partisan one. In the long term, this might be the most important ramification of the timing, tenor, and tone of Kennedy’s departure.

What is the impact of this intensely polarized and partisan confirmation process on the institution of the Court itself?

Can the Court or the confirmation process come back from Kavanaugh? Or will it forever be a “complete politicized drama”?

These two questions are closely related, in my view. The Court’s legitimacy stems, to a large degree, from public opinion—and from the idea, however idealized, that judges are more than just “politicians in robes,” and are committed to something other than maximizing partisan political advantage. That doesn’t mean that the Justices aren’t political, or that their jobs have nothing to do with politics. But there’s a world of difference between the view that judges decide cases in line with their own personal ideological and philosophical commitments and the view that the Court as an institution is just another level for exercising and/or maintaining partisan political power. The onus, methinks, is on the Justices going forward to avoid that appearance, or else the Court risks eroding public trust in its decisionmaking—and, through that, its ability to hand down decisions that run against prevailing majoritarian sentiments. And as much as that puts pressure on the current Justices, it also puts pressure on future confirmations—to try to make the case for why it should matter, to everyone, that the Court be seen not so much as being above politics, but at least as not being controlled by them.

Image: Senate Majority Leader Mitch McConnell gives a thumbs-up as he is applauded during the ceremonial swearing-in of Brett Kavanaugh by Justice Anthony Kennedy before President Donald Trump on October 8, 2018, at the White House. Photo by Jim Watson/AFP/Getty Images

 

About the Author(s)

Kate Brannen

Editorial Director of Just Security; nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council; previously senior reporter covering the Pentagon for Foreign Policy Follow her on Twitter (@K8brannen).

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).