Much of the press coverage about the Supreme Court confirmation process, mainstream and otherwise, has been about the alleged low quality of tactics undertaken by each political party as they maneuver to confirm or obstruct the confirmation of the nominee.
Forgotten in all the outrage is the fact that none of this maneuvering would be necessary if the senate had not abandoned its earlier commitment to nominees capable of earning bipartisan support.
After a period of partisan votes, the senate had settled into a 55-year period of bipartisan confirmation votes lasting from 1949 through 2004. (See graph.) The only two exceptions were Minton (1949), and Thomas (1991). Since then, none of the new justices could be said to have bipartisan support: Roberts (2005), Alito (2006), Sotomayor (2009), Kagan (2010), and Gorsuch (2017).
At the time this was written, six of eight Supreme Court Justices were elected without bipartisan support. These are Roberts, Thomas, Alito, Sotomayor, Kagan, and Gorsuch. One position now waits to be filled.
The recent absence of bipartisanship in filling court vacancies could, if continued, encourage people to doubt the legitimacy of Supreme Court decisions, seeing them as political rather than thoughtfully argued in the search for what is best for all Americans within constitutional limits. That would not be good for our republic, our democracy.
Perhaps the Senate could create a new rule for Supreme Court confirmations: nominees are confirmed only when they can earn bipartisan support – when they earn a majority vote and a majority vote from each party represented in the senate holding more than two seats. Article 1(5) of the constitution empowers the house and senate to devise their own rules.
Sources: GovTrack.us and author’s calculations. Partisan bias is calculated here as the gap between party vote shares to confirm a nominee. Gaps of more than 40 percent are treated as strongly partisan.
Photo credit: Architect of the Capitol.