Joe Biden has announced his first pick for the Supreme Court: Ketanji Brown. She would become the first Black woman appointed, should she be confirmed. Yes, the should has become a most dubious matter of late, since the Democratic majority hangs by a thin thread, as if taken from a cat-ravaged sweater. They’ll need every Democrat in the Senate on board and likely Kamala Harris too (as the deciding tie-breaker) should no Republicans offer support. Which they won’t.
Sadly, the Supreme Court nominating process has become embroiled in the same petty politics that dominates basically every other major appointment or campaign in Washington. And it’s much more consequential since Supreme Court justices don’t have terms limits (Clarence Thomas has been serving for 30 years now). So a lot is on the line. Plus, this is just replacing one Democratic appointee (Stephen Breyer) with another. The Republican appointees (i.e. conservative judges still hold a majority of 6:3 which is unlikely to change anytime soon. Can anything be done and what’s the best course of action? There’s really no clear-cut answers but we’ll delve into it, after first taking a look at the justices:
- John G. Roberts (Chief Justice; appointed by George W. Bush; 2005; confirmed 78-22 vote)
- Clarence Thomas (appointed by George H.W. Bush; 1991; confirmed 52-48 vote)
- Stephen G. Breyer (appointed by Bill Clinton; 1994; confirmed 87-9; to be replaced)
- Samuel Alito Jr (appointed by George W. Bush; 2006; confirmed 58-42)
- Sonia Sotomayor (appointed by Barack Obama; 2009; confirmed 68-31)
- Elena Kagan (appointed by Barack Obama; 2010; confirmed 63-37)
- Neil Gorsuch (appointed by Donald Trump; 2017; confirmed 54-45)
- Brett Kavanaugh (appointed by Donald Trump; 2018; confirmed 50-48)
- Amy Coney Barrett (appointed by Donald Trump; 2020; confirmed 52-48)
Just at a glance, a couple interesting points can be drawn:
- The votes have become increasingly contentious (for the most part)
- Donald Trump has secured three appointments in a single-term without even winning the popular vote
It would be incorrect to say this process hasn’t always involved politics or clashes over nominees. Indeed, history shows that as far back as Washington, there’s been rejection and compromise (when he failed to make John Rutledge the Chief Justice in 1795). John Tyler (the first VP to ascend to the top job) only had one of his five men appointed by the Whig-majority Senate. So, it’s nothing new exactly. But… it has gotten pettier and that bit more combative. In 2017, Trump appointed Gorsuch even though it was Obama’s duty to replace the conservative judge Antonin Scalia (the Republicans basically blocked Obama and delayed). Amy Coney Barrett was then quickly rushed through in the wake of Ruth Badger Gisberg’s death in 2020; appointed only a week out from election. (Her nominating process, between hearings and other such matters, took only 28 days, where it’s taken 2-3 months on average the last 50 years for other justices).
The short-circuiting and politicisation of this process has not been lost on the public. From August 2019 to January 2022, a PEW Research Center poll found favorability ratings of the court had fallen from 69% to 54%. Democrats are naturally more miffed , considering the general ideological imbalance. Many conservatives, unsurprisingly, find the court to be closer to neutral in their judgment. For Jack Schafer (writing in January for Politico), the differences of perspective are irrevocably hard to reconcile. He writes that Joe Biden’s declaration of Black female justice (motivated by endorsement of S. Carolina representative Jim Clyburn) parallels Reagan’s promise of a female justice in 1980. He also feels that judicial philosophies cannot easily be separated from personal ones (if at all) as evidenced by rulings which “track so closely with the positions of the parties whence they came”. Basically, nobody’s buying Amy Coney Barrett’s bullshit statement of apolitical duty and everyone has an agenda or bias anyways.
Had Joe Biden opted for a moderate justice then, would the path towards a more levelled Supreme Court be paved? It would be entirely naive to think so. Plus, he doesn’t have the luxury of experimenting since (again) they’re at a 6:3 disadvantage. Certainly though, it’s clear that the appointment of Brown has riled up conservatives who will paint her as ultra-liberal counterweight. And unless the current political discourse (as a whole) is tempered, we’re unlikely to see much change in the courts. Perhaps, Pete Buttigieg’s proposal of 15 justices (10 affiliated across both parties with 5 selected by them or something similar) would help dilute matters but it’d likely result in a bureaucratic mess too and given the popular perception of Washington as indecisive, one can’t imagine that playing out well.
Unfortunately, it may be a matter of simple expectations and hopes placed on the justices we have at present. Should Joe Biden add more, one can only imagine what a Republican president would do, in turn (even though they cheated with Gorusch and Barrett). Really, all he can do is try his best to get Brown through and maybe rally public support behind the values of his causes. Of course, then we go down the rabbit-hole of how liberal the Democrats should present themselves, among other things. And so we leave another article on another, nice ambiguous …