Chapter 33: Appointing and Confirming Supreme Court Justices

“[Federal judges] have become the most consequential policymakers in the country. They have gutted America’s campaign finance law and dismantled much of the Voting Rights Act. They have allowed states to deny health coverage to millions of Americans. They’ve held that religion can be wielded as a sword to cut away the rights of others. They’ve drastically watered down the federal ban on sexual harassment. And that barely scratches the surface.”

–Ian Millhiser (1)

“The authors of America’s constitution created the Supreme Court to provide a check on the danger that political evolution might lead Congress to pass laws threatening oligarchic rule.”

—Michael Hudson (2)

The Supreme Court Justices

The U.S. Supreme Court currently has nine justices. The Constitution does not specify the number. In the Judiciary Act of 1789, Congress initially established a six-member Supreme Court, with a Chief Justice and five associate justices. Between then and the Civil War, Congress gradually expanded the number of justices to ten. Then, in an attempt to limit President Johnson’s powers, Congress reduced the number of justices through retirement down to seven. In 1869, Congress raised the number of justices to nine, where it has stayed ever since. In 1937, President Franklin Roosevelt proposed to expand the number of justices by adding one for every sitting justice who was seventy- and one-half-years-old and who didn’t retire. Potentially, this move could have increased the number of justices to fifteen. Roosevelt was frustrated that the Court was thwarting his New Deal policies, which were targeted at ameliorating the effects of the Great Depression. His court packing plan was not approved by Congress, but the Court nevertheless became more amenable to an activist federal government. (3) When the Court changed and begin endorsing Roosevelt’s policies, it became popularly known as “the switch in time that saved nine.”

Article II, Section 2, of the Constitution says that the president appoints Supreme Court justices with the Senate’s advice and consent. The same procedure applies to seating all federal judges. The president’s nominee needs at least fifty-one votes in the Senate to take their seat on the bench. The Constitution does not list qualifications to be a Supreme Court justice or other federal judge. Senate Judiciary Committee members interview district and circuit court seat nominees, scrutinizing the nominee’s stances on previous cases or their approach to making decisions. The magnitude of this scrutiny is significantly greater for Supreme Court nominees. In 2017, the Senate Republican majority enforced new rules to disallow filibustering Supreme Court nominees.

Who are our current Supreme Court justices? Although few Americans can name them, you should know who they are and something about their perspectives. You can always check the Supreme Court’s website  for the current membership. Talk about the Supreme Court justices with your professor, classmates, family, and friends. What do you know about who appointed them and their ideological perspectives? Here are some interesting facts about the history of justices who sit on the Supreme Court. Up through mid-2020, 114 people have served as Supreme Court justices. More than 97 percent have been White, and more than 96 percent have been men. (4) Of all the Supreme Court justices who have served since the Civil War, more than 65 percent have been nominated by Republican presidents.

Controversies Surrounding Some Court Nominations

Nominating a Supreme Court justice is a very politically consequential act. Because that person is likely to serve on the Court for decades—there is no term or age limit for justices—they affect public policy and the lives of ordinary Americans long after the president is out of office. The Supreme Court has decided whether schools can be racially segregated, whether couples can access contraception, whether your local police must possess a warrant to search your house or car, and whether federal agencies can regulate child labor and air pollution. Given the stakes, some Court nominations have proven to be very controversial. As the Senate deliberates and makes new appointments, you should be aware of the following controversies because they either will, or probably have, been mentioned in the news:

Robert Bork—In 1987, President Ronald Reagan nominated Robert Bork to the Supreme Court. In nominating Bork, Reagan was seeking to replace retiring centrist Justice Lewis Powell Jr., with an activist conservative justice. The Senate defeated Bork’s nomination 58-42. As far as most Democrats and a few moderate Republican senators were concerned, Bork had two strikes against him. First, Robert Bork was the Justice Department official who carried out President Nixon’s “Saturday Night Massacre.” Nixon had ordered his Attorney General to fire the special prosecutor investigating the Watergate scandal. The Attorney General refused and resigned instead. So did the Deputy Attorney General. Bork, who was third in command at the Justice Department, carried out Nixon’s order and fired the special prosecutor. Second, Bork’s legal opinions put him far to the right of mainstream legal thinking. He opposed the Court’s actions to ensure one-man-one vote; he opposed civil rights Court decisions; he opposed the right to privacy. After Bork’s nomination was defeated, Reagan tried another appointment but had to rescind it. Then, he settled on Anthony Kennedy, who served for thirty years on the Court as a swing vote. Kennedy was approved by a 97-0 vote. (5)

Clarence Thomas—In 1991, President George H. W. Bush appointed Clarence Thomas to replace Thurgood Marshall, who had retired from the Supreme Court due to his failing health. An important point to note is that while both justices are African-American, Marshall was a prominent liberal with an historically long progressive interpretation of the Constitution. Thomas was an up and coming conservative originalist. Thomas’ Senate confirmation hearings became a national television event. Anita Hill, who had worked for Thomas when he led the Equal Employment Opportunity Commission (EEOC), accused him of pestering her for dates, sexually harassing her, and creating a hostile workplace environment replete with crude references to sex and pornography. Keep in mind that the EEOC is charged with investing federal sexual harassment cases. In one of his worst public acts, Senator Joe Biden, Democratic chair of the all-male, all-white Senate Judiciary Committee that was holding the hearings, allowed Thomas to testify before and after Hill and refused to bring in other witnesses who would have corroborated Hill’s account of Thomas’ behavior. The Republican Senators who went after Hill in the hearing—Arlen Specter, Orrin Hatch, Strom Thurmond, Alan Simpson, and John Danforth are a few who stand out—showed how out of touch they were on sexual harassment issues. Thomas was approved by a 52-48 vote. Perhaps the only good things to come out of this tragedy is that a few more women were subsequently elected to the Senate, and EEOC workplace sexual harassment reports more than doubled. (6)

Merrick Garland—In February of 2016, sitting Supreme Court justice Antonin Scalia died unexpectedly. President Barack Obama nominated centrist Merrick Garland to fill that Court seat. Garland had served for twenty years as chief judge of the D.C. Circuit Court and had never had one of his decisions overturned by the Supreme Court. Flouting Constitutional norms, Senate Majority Leader Mitch McConnell and his fellow Republican senators said they would not meet with Garland, hold confirmation hearings, or hold a vote. The Republicans argued that they did not have to hold hearings or a vote on a president’s nominee and that the voters should speak in the 2016 presidential election before the seat was filled. So, the Republicans kept the seat vacant for over a year. When President Trump won the election, McConnell and his colleagues promptly approved Trump’s nominee, a conservative originalist named Neal Gorsuch, to fill the empty seat. McConnell later made clear that if a seat were to come open during 2020, he would hold hearings and a vote rather than wait until the presidential election that fall. Democrats are unlikely to forget the Republican Supreme Court seat theft. (7)

Brett Kavanaugh—When justice Anthony Kennedy announced his retirement in 2018, it afforded President Trump an opportunity to replace a swing-voting centrist with a solid conservative, thus tilting the court even more to the right. Trump appointed conservative Brett Kavanaugh. During the confirmation process, Kavanaugh’s high school classmate Christine Blasey Ford came forward with sexual assault allegations that had allegedly happened when the two were in school together. Blasey Ford was, by all accounts, a credible witness. Kavanaugh vehemently denied the allegations and launched partisan invective at the Democratic senators on the Judiciary Committee. Classmates who knew Kavanaugh at Yale University made similar allegations, but they were not heard at the hearings, and the FBI did a superficial job of investigating them. (8) Moreover, Kavanaugh’s opponents raised credible allegations during the confirmation process that he had perjured himself on multiple topics. (9) Nevertheless, the Republicans were not of a mind to seriously probe those allegations. Kavanaugh was approved by a vote of 50-48.

Amy Coney Barrett—Remember Merrick Garland from 2016? At the time, Republicans said that President Obama should not be able to seat a new Supreme Court justice in an election year. That was February of 2016, a full eight months before the election. When justice Ruth Bader Ginsburg died in September of 2020, less than two months before the election, the Republicans set aside their earlier stand and rushed through the nomination of Amy Coney Barrett to sit on the Court. Hypocrisy aside, this move swapped a progressive voice like Ginsburg for a conservative one like Barrett. Every Democratic senator voted against Barrett’s nomination, but it was passed 52-48. Barrett’s confirmation solidified a 6-3 conservative majority on the Court that appears to be committed to weakening the voices of ordinary Americans through its endorsement of gerrymandering, barriers to voting, and unfettered money in the electoral process. (10)

Staffing the Rest of the Federal Judiciary

Before we leave the topic of appointing and confirming Supreme Court justices, we should also take a look at recent developments regarding other federal judgeships. Speaking plainly, the federal judiciary has become politicized to a remarkable degree. This has occurred in the past as well, but you should know about politicized partisanship: we are in a highly politicized time with respect to the federal judiciary. Congressional partisanship has not only led to contested nominations, but it has spilled over into the judiciary, such that battles lost in Congress manifest themselves as wars in the federal courts. It is also clear that Republicans have been particularly aggressive and successful in packing the courts with conservative judges. How have they accomplished this? Via the following three mechanisms:

Creating a conservative judicial strategy—In recent decades Republicans have been far more unified and strategic with their approach to the federal judiciary than have Democrats. They saw in the 1950s, 60s, and 70s that a centrist federal court system was amenable to civil rights, female bodily integrity, economic regulations, and environmental regulations. They developed a strategy to turn that tide. The Federalist Society has been key to that strategy. Founded in 1982, the Federalist Society supports and cultivates conservative law students and jurists. It has been funded with tens of millions of dollars by a who’s who of deep-pocketed conservatives, including the Koch brothers—oil, chemicals, commodities, fertilizer; the Scaife family—oil, aluminum, banking; the Templeton Foundation—Wall Street investments; the Searle Foundation—pharmaceuticals; Exxon—oil; Chevron—oil; Google—Internet search and advertising;  Verizon—telecommunications; and the U.S. Chamber of Commerce—business interests. (11) The Federalist Society “educates” law students and early career jurists to cut federal regulations, take an originalist approach to Constitutional interpretation, defend corporate personhood, and embrace a social-Darwinian approach to the question of whether government policies should help improve ordinary peoples’ lives. Young lawyers know that the best way to advance their career is to tow the Federalist Society line. The Federalist Society is comfortable enough in its role that it regularly hosts fundraisers in which big donors have access to Supreme Court justices like Antonin Scalia, Clarence Thomas, and Samuel Alito. (12) The liberal alternative to the Federalist Society is the American Constitutional Society, which doesn’t have nearly as large a stable of billionaire and corporate donors. Moreover, Democratic presidents have thus far not been particularly strategic in their federal judiciary nominations.

Stalling judicial nominations during the Obama administration—When Barack Obama became president following the 2008 elections, Senate Republicans were determined to deny as many of his judicial appointments as possible. We’ve already mentioned the Merrick Garland Supreme Court nomination that they blocked altogether, but their obstruction extended to lower federal bench seats as well. While Republicans were in the minority, they used the filibuster, requiring a cloture motion to end it. According to the nonprofit, PolitiFact, “cloture was filed on thirty-six judicial nominations during the first five years of Obama’s presidency, the same total as the previous forty years combined.” (13) Frustrated by the obstruction, Democrats changed the Senate rules to no longer allow lower court nominations to be filibustered. When Republicans regained the majority in the Senate following the 2014 elections, they were in a position to significantly hamper Obama’s nominations, which they certainly did. Consider that majority Democrats approved 68 of Republican George W. Bush’s court nominees in the final two years of his presidency, while the majority Republicans approved just twenty of Democrat Barack Obama’s nominees. As a result, Obama left office with an astonishing 107 federal court seat vacancies—twice as many as when Bush left office. (14)

Rushing nominations through during the Trump administration—Once President Trump took office, Senator McConnell and his fellow Republicans ramped up the judicial approval process to get as many young conservatives on the federal bench as possible. Their fevered pace was such that McConnell bragged at a campaign rally that he and Trump were “changing the federal courts forever.” (15) Of Trump’s first eighty-seven judicial nominations, 92 percent were white, and the Trump administration placed a strong emphasis on getting originalists and textualists on the federal judiciary. (16) Equally disturbing, more than twenty of Trump’s appointees refused to say whether the unanimous Brown v Board of Education (1954) decision against segregated schools was correctly decided. (17) The Trump administration essentially turned over its vetting federal judicial nominations to the Federalist Society. According to Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, “When you look at [Trump’s] list of judges and the people that he’s put on the bench, it’s been entirely controlled by the Federalist Society.” (18)

From a strictly political science point of view, it will be interesting to see how the most recent phase of judiciary politicization will play out. Control of the Senate is key, and the Biden administration maintained Democratic control of the Senate throughout his first term. A federal judiciary that hews to originalism, textualism, and conservative values will undercut the ability of progressives to implement the kinds of federal programs that they argue would benefit ordinary people. More about those values in upcoming chapters.

What if . . . ?

Part of the reason judicial nominations are so high stakes is that nominees hold their positions for life. What if we placed term limits on Supreme Court justice positions and other federal judgeships? What would be the advantages and disadvantages of doing so?

References

1. Ian Millhiser, “What Trump has Done to the Courts, Explained,” Vox. December 9, 2019.
2. Michael Hudson, “Should There Be a Supreme Court? Its Role has Always Been Anti-Democratic.” Counterpunch. July 7, 2023.
3. Lesley Kennedy, “This is How FDR Tried to Pack the Supreme Court,” History.com. October 28, 2018.
4. Only Thurgood Marshall, Clarence Thomas, and Sonia Sotomayor are people of color. Only Sandra Day O’Connor, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan are female.
5. Sarah Pruitt, “How Robert Bork’s Failed Nomination Led to a Changed Court,” History.com. October 28, 2018.
6. David A. Kaplan, “Anatomy of a Debacle,” Newsweek. October 20, 1991. Julia Carpenter, “How Anita Hill Forever Changed the Way We Talk About Sexual Harassment,” CNN Money. November 9, 2017. See also various videos here, here, and here.
7. Rebecca J. Rosen, “Neal Katyal: Senate’s Obstruction of Merrick Garland ‘Was Unforgivable,’” The Atlantic. June 27, 2017. Ron Elving, “What Happened with Merrick Garland in 2016 and Why It Matters Now,” NPR. June 29, 2018.
8. Mimi Rocah, “Confirmed: Powerful Men Ignored Women in Short-Circuited Brett Kavanaugh Investigation,” USA Today. September 17, 2019. Robin Pogrebin and Kate Kelly, The Education of Brett Kavanaugh: An Investigation. New York: Penguin, 2019.
9. Tara Golshan, “Did Brett Kavanaugh Perjure Himself? The Debate, Explained,” Vox. October 2, 2018.
10. Jane Chong, “The Amy Coney Barrett Hearings Were a Failure,” The Atlantic. October 16, 2020.
11. See Sourcewatch, and Polluterwatch.
12. Stephen Spaulding, “Federalist Society Big Donors Land Very Special Place at Justice Thomas’ Table,” Common Cause. December 5, 2013.
13. Allison Graves, “Did Senate Republicans Filibuster Obama Court Nominees More Than All Others Combined?” PolitiFact. April 9, 2017.
14. David G. Savage, “This Congress Filled the Fewest Judgeships Since 1952. That Leaves a Big Opening for Trump.” Los Angeles Times. December 31, 2016.
15. Jake Johnson, “McConnell Brags He and Trump are ‘Changing the Federal Courts Forever’ With Extreme Right-Wing Judges,” Common Dreams. November 5, 2019.
16. Richard Wolf, “Trump’s 87 Picks to be Federal Judges are 92% White With Just One Black and One Hispanic Nominee,” USA Today. February 13, 2018.
17. “Trump Judicial Nominees and Brown V. Board of Education,” Weekend Edition Sunday. NPR. May 19, 2019.
18. “What is the Federalist Society and How Does it Affect Supreme Court Picks?” All Things Considered. NPR. June 28, 2018. Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. Oxford: Oxford University Press, 2019.