There was no serious question among serious people that Judge Ketanji Brown Jackson was qualified to become an associate justice of the Supreme Court. She was no Bork. She was no Thomas. Efforts to Kavanaugh her were ridiculous to anyone with any knowledge and experience in law. What she was not was ideologically conservative, even though she’s quite clearly within the mainstream of judicial philosophy.
That means she wasn’t the person a Republican president would pick, which is fine but for the fact that Biden is a Democrat, Biden is president and you ran Trump as your candidate and got what you deserved. A loss. So you don’t get to pick the person you prefer and Biden does. That’s how it’s supposed to work.
The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.
Judge Jackson was confirmed 53-47. It should have been 99-0, assuming Rand Paul got lost on his way to the chamber. But then, the Dems hold the Senate majority for the moment, and are overwhelmingly likely to lose it given their acquiescence to their most radical fringe. What then?
We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.
The “they started it” debate is no better here than on the playground when you were in third grade. Don’t do it. The question is who ends it or whether we go scorched earth and destroy all norms that have enabled our nation to function up to now.
The result is a fiercely partisan process that demeans the Senate and politicizes the court, rendering it a creature of political will and power. At this stage, there is no incentive for either party to back down from this maximalism. Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.
The irony is that the refusal to give Merrick Garland a hearing was a seismic shift in the rules of the game, and Garland was that potential justice that the Republicans couldn’t fault. Hell, he could have just as easily been a Rep pick as a Dem.
The “hint” is that when the Republicans are back in the Senate majority, they will refuse to give Biden’s Supreme Court (and maybe lower courts as well) nominees hearings and essentially shut down the process. This is a game two can play. It’s also a game that will end in misery and destruction of what remains of the besmirched integrity of the least dangerous branch.
It’s not that the justices of the Supreme Court aren’t trying to do their job with integrity, although what they see their job as being may vary by philosophy. But gaming the personnel based on the Senate majority, notwithstanding the choice made by the president in the exercise of his constitutional authority, crosses a line that we will all, eventually, regret.
When norms give way to partisanship and ideology, when applying impartial rules yields to obtaining results by any means, institutional legitimacy erodes. The immediate gain is understandably tempting. The institutional damage might not be immediately evident, but it is as undeniable as it will be difficult to repair.
We may well hate the decisions of a Supreme Court that doesn’t rule the way we think it should. But we will hate it even more when the Supreme Court rules and other courts don’t care and do as they please. If you think things are horrible with the Court as it is, then you’re going to really hate it when the Supreme Court is rendered institutionally irrelevant.
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“The question is who ends it or whether we go scorched earth and destroy all norms that have enabled our nation to function up to now.”
You left out the key question: how do we end this problem. I see no solutions proposed in this article, and few others elsewhere. And none of the solutions appear to be workable.
I thought that too obvious, but then the average IQ is 100. The way to end the problem is to end it. Someone, some side, stops behaving like a third grader and decides to be the better side.
Or the Republicans just give in to the Democrats like they always do.
Ending hostilities requires both parties – not just one. Both parties are playing to their voting base, which demand futile gestures of resistance. Republicans would have lost nothing, except the goodwill of the base, by voting for Judge Jackson.
Similarly, Dems arguably harmed themselves by filibustering Gorsuch. Dems could have saved their filibuster for a more controversial nominee. Would Republicans have ended the filibuster for Kavanaugh? For Barrett?
Neither party has shown themselves willing to cease hostilities, even where such cessation is harmless. How can either party believe the other is wiling to lay down arms in this environment?
That’s how every third grader sees it.
The way to end this is to end this. Whoever does so will have the deep appreciation of American’s who don’t have their head so deeply up their ass that they can’t see beyond their tribal blinders.
Now even the long terms of the members don’t insulate senators from perpetual campaigning. Hence, the never-ending clown show. And, even at its most pointless, the media can’t turn away. If only they could, most of the pointless posturing would stop. It would become like all the speeches never actually made on the floor that are printed in the Congressional Record under the guise of members “revising and extending” their remarks.
If Bork had cut off that silly beard, he would have been confirmed. Sometimes your appearance on TV is everything.
Yes yes I know it’s not the focus of the article but I’m not letting it slip by without objection… “… to lose it *given their acquiescence to their most radical fringe*”?
The “most radical fringe” is furious that Biden *isn’t* caving in to them (and as petulant children do many of them say they’ll sit the next election out), so I’m not sure what universe you’re channeling where this administration’s problem is being too far off to the left when they’ve placed moderates in all key positions, including Garland as AG when as you note, he could just as easily pass for a Rep (a description that applies to his current job performance as well), spurned progressives even on things that were promised in the campaign and don’t require Congress, and have the most conservative Senator of their caucus controlling everything passed by Congress and blocking everything Republicans wouldn’t have supported prior to their blanket obstinance policy… but it’s not this one.
Biden is a moderate who’s acted as a moderate. The only concession to the progressive wing is in rhetoric and a small number of fairly unimportant minor positions (politically and electorally; for example as much as Catherine Lhamon may be rightfully despised around here, 99% of voters have no idea who she is or what the Title IX policy is), and it’s not a fair assessment that when Democrats lose, it’s because they ran a moderate administration but handed a few rhetorical tummy rubs to the “radicals” who, despite your characterization which while accurate in some respects, is inaccurate in others as they represent more policies with majority support than the moderates (and among the wealthy democracies, these are radical primarily in the US, most other places they represent the mainstream baseline).
You raise a good question as to where the middle ground can be found, which is largely a matter of perspective based on where you’re situated. There are certainly more extreme radicals on the left, so my use of the “most radical fringe” is likely wrong. No matter how radical, there will always be some who are more radical.