How do we end the cycle of confirmation wars?

How do we end the cycle of confirmation wars?
© Anna Moneymaker

With the courts, perception is just as important as reality. The judiciary relies on the public’s faith in its role as a fair arbiter of disputes — without that legitimacy, why would citizens or officials feel obliged to follow court orders?

If one is concerned about the Supreme Court as an institution that can safeguard against constitutional overreach by the other two branches, the bare-knuckles politicking over recent Supreme Court nominees is incredibly shortsighted.     

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As this most recent (and awful) confirmation saga finally comes to its end, one unsettling consequence surfaces: The legitimacy of the Supreme Court is undermined by the U.S. Senate and its current confirmation process.

Before we try to claw our way out, let’s take a moment to see how we got here. Spoiler alert: No one has clean hands.

For most of the 20th century, presidents and the Senate undertook their respective roles to nominate and give “advice and consent” without much fanfare. The last nominee confirmed on a voice vote was Abe Fortas in 1965 Since then, there have been 22 votes on nominees for the high court. Fourteen were confirmed by sizeable majorities of near or over two-thirds of senators, and five were confirmed unanimously. 

But when a nomination could upend the ideological balance on the court, confirmation fights become wars. This was true with Robert Bork, a staunch conservative nominated by President Reagan to replace the swing-voting Lewis Powell in 1987, and it was true in 2016, with Merrick GarlandMerrick Brian Garland2020 Dems break political taboos by endorsing litmus tests Merrick Garland, denied Supreme Court spot, on court set to consider Trump subpoena appeal  Warren calls for Congress to pass federal laws protecting Roe v. Wade MORE, a moderate nominated by President Obama to replace the conservative Antonin Scalia. 

Today’s fever pitch reflects the prominent role the high court has come to serve in the country’s political life. The courts have been forced to wade into disputes that have traditionally been left to the other branches. The fight over judges has become so political because the executive and legislative branches have often preferred a fight in the courts rather than at the ballot box. And one should not discount the role of well-funded interest groups in fanning the flames.      

The resulting pressure has undermined long-standing Senate rules and norms meant to promote consensus, compromise, and comity.

Many are encouraging elected officials from both parties to exact new forms of payback for past partisan gamesmanship. Calls for court-packing and impeachments have already begun, which may make an aggrieved side feel better, but are dangerous to the legitimacy of the courts. Without intervention, we will witness a rapid race to the bottom.

The alternative is a call for a detente. It is apparent that the present confirmation process is no longer suited for the divisive political culture we now find ourselves in. We need a process that is fair and rigorous, yet expeditious — and that transcends party power and control.  

We should consider measures that would not only promote cross-party consultation, but require it. Requiring at least 60 votes for any nomination to advance would promote consensus, imbuing a nomination to the Supreme Court with much-needed legitimacy (it’s also supported by a clear majority of the American public). Unwarranted delays to nominations should be addressed through rules requiring timely consideration of nominees.

The Senate could also take a page from the states, where some jurisdictions task nomination commissions with the vital role of vetting candidates for judgeships, ensuring not only the quality of nominees, but garnering bipartisan and multi-branch buy-in at the outset. Various states require the commissions to submit an agreed-upon list of potential nominees, from which a governor selects a final choice to fill a vacancy.    

It may also be time to think about some changes previously believed to be heresy — namely an end to life tenure. While it was meant to insulate judges from politics, it also means that a court vacancy allows presidents to leave their mark on the country for decades to come, raising the stakes of each nomination.

There is no shortage of ideas for improving the process to better protect the independence of the highest court in the land. No rational person would walk away from this latest episode thinking that it is something the country would like to see repeated. Now is not the time to lament how much worse it will get. It’s time to start thinking of a way out of this mess.  

Sarah Turberville is the director of The Constitution Project at the Project On Government Oversight.