By Sarah A. Binder, Russell Wheeler
Ketanji Jackson’s Supreme Court confirmation hearings are scheduled to begin March 21. Senate Majority Leader Chuck Schumer (D-N.Y.) has wistfully hoped “that a good number of Republicans will vote for her, given who she is.” But recent history suggests that most Republicans are unlikely to vote for President Joe Biden’s nominee. The real question is whether GOP opposition will be muted or intense. How vigorously will Republicans oppose a well-credentialed Black woman with a compelling life story—and the first Black woman nominated to the nation’s highest court? With no Republican support, one Democratic defection would kill the nomination.
Rising partisanship
Smooth, bipartisan confirmations are largely a thing of the past. As the parties have polarized ideologically and courts have taken on core social, economic, and political questions, each party’s base cares more about who sits on the bench, especially the Supreme Court’s. Increasingly competitive elections and a rise in partisan team play—we’re against whatever your team’s for—also encourage both parties to use judicial appointments to rally support at election time.
More contentious confirmation contests generally take longer. Figure 1 shows the number of days from nomination to final Senate floor vote for nominations from the Kennedy through the Trump administrations. Except for the GOP Senate’s rush to confirm Amy Barrett days before the 2020 presidential election, the confirmation process has grown longer in recent decades.
How did the Senate move so expeditiously to confirm Barrett? When the president’s party firmly controls the Senate, a carefully vetted and choreographed nomination can proceed swiftly to confirmation. Republicans’ banning filibusters of Supreme Court nominations in 2017 (matching the Democrats’ 2013 ban on lower court filibusters) surely paved the way as well. It spared the majority the near-impossible task of gaining Democrats’ support. To be sure, the majority can’t always steer a nomination as efficiently as Barrett’s. Brett Kavanaugh’s nomination hit gale force winds when Democrats brought up allegations of past sexual misconduct during his hearings.
Figures 2 and 3 reveal two other aspects of increased partisanship. Figure 2 shows the total number of votes against Supreme Court nominees back to 1962—with a marked increase in opposition over the past three decades.
For the thirty plus years from John F. Kennedy through Bill Clinton—White through Breyer in the figure—the Senate confirmed most Supreme Court nominees unanimously or with just a handful of nay votes.
True, the Kennedy-through-Clinton waters were sometimes choppy, roiled by the 1968 withdrawal of Johnson nominees Abe Fortas (to be chief justice) and Homer Thornberry, and the defeat of Nixon and Reagan nominees Clement Haynsworth, Harold Carswell, and Robert Bork. And three of the period’s confirmations were especially contentious—H.W. Bush nominee Clarence Thomas and William Rehnquist (first as a Nixon nominee and then elevated to chief justice by Reagan).
Since the middle of the second Bush administration, contentious confirmation fights have become the norm, as marked in Figure 3 by the sharp falloff in opposition party support.
Only a handful of Democrats have voted for recent GOP presidents’ Court nominees, and vice versa. Most recently, Neil Gorsuch received three Democratic votes—only Joe Manchin (D-W.V.) voted for Kavanaugh and Barrett was the first nominee confirmed without any opposition party support since 1869.
Recent presidents have been largely assured of their party’s senators’ votes. That wasn’t always the case. Some southern Democrats opposed Johnson nominee Thurgood Marshall—the first Black Supreme Court justice. A few Republicans occasionally bucked their party’s nominee, helping, for instance to tank the Haynsworth, Carswell, and Bork nominations and voting against the controversial Rehnquist and Thomas confirmations. And GOP conservatives forced President George W. Bush’s 2005 withdrawal of Harriet Miers’s nomination. More recently, however, only a single senator from the president’s party opposed Alito, Kagan, and Barrett, and none opposed Sotomayor or Kavanaugh.
Tit-for-tat play
Partisan payback has come to permeate confirmation contests.
President Bush appointed two Supreme Court justices in 2005 after winning a second term with a slim popular majority. But in 2001, he aggressively campaigned to fill the lower federal courts with reliable conservatives despite entering office after a slim popular vote loss. That likely heightened Democratic opposition to his nomination of John Roberts, despite Roberts’s impressive credentials, and even greater opposition to Samuel Alito. In turn, payback for the 41 Democratic votes against Alito may help explain the more than 30 Republican votes against Obama nominees Sotomayor and Kagan.
The 40-plus votes against Trump’s three nominees and virtual disappearance of opposition-party support reflects what Democrats saw as exceptionally partisan team play by Republicans in confirming those nominees (and Democratic opposition to Trump’s campaign to reshape the lower judiciary despite his large popular vote loss). Republicans’ boycott of Obama’s 2016 Merrick Garland nomination also incensed Democrats—especially after the GOP-Senate swiftly filled the vacancy with Gorsuch in 2017. What’s more, after refusing to consider Garland—claiming that the Senate doesn’t fill vacancies during election years—Republicans fabricated a different history to justify Barrett’s race-to-the-bell confirmation even as voters were turning Trump out of office.
Jackson’s road ahead
Past patterns suggest that to be confirmed, Jackson will need to secure the votes of all 50 Democrats. Barring surprises during her confirmation hearings (or a prolonged absence by a Democratic senator), Jackson is likely to sew up those votes.
No Senate Democrat has voted against any Biden lower court nominee. Still, many eyes are on West Virginia’s Manchin. He has said that even if a nominee has “a more liberal philosophy than his,” the “philosophical beliefs ‘will not prohibit me from supporting somebody.’” Manchin’s support, however, could be uncertain until right before the vote.
A few GOP votes would allay Democrats’ concern that in a 50-50 Senate, one maverick or sidelined Democrat could doom the nomination. So far, Republican reaction has been muted, with some exceptions. With an eye to the midterm elections, some senators might be wary of alienating swing voters by aggressively opposing Biden’s historic selection. GOP senators Roy Blunt (M.O.) and Mitt Romney (U.T.) have even suggested they are open-minded about supporting her—if they are comfortable with her jurisprudence. Also—although one long-time Court observer has speculated that given Jackson’s background, she might lead some of her colleagues “to see the world in a different way”—her confirmation will not change the Court’s ideological line-up. That might facilitate Republican support and limit the chances that Judiciary panel Republicans could try to derail her confirmation by boycotting a committee vote.
But don’t hold your breath waiting for more than miniscule GOP support. Last year, only three Republicans supported Jackson’s elevation to the D.C. Circuit’s Court of Appeals, and only a handful of them have supported any Biden appellate court nominees. What’s more, some have already trotted out charges that her two years as a public defender makes her soft on crime and a hero of the Democrats’ “radical left.” Expect more below-the-belt attacks during her Judiciary Committee hearing, a high profile platform that GOP conservatives are eager to exploit for their presidential ambitions.
* Data sources are those referenced, and the Federal Judicial Center’s biographical data base and the U.S. Senate’s, list of supreme court nominations and party division data.
