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“Advice and Consent”



(Judge Brett Kavanaugh addressing the Judiciary Committee during his confirmation hearing).

The Senate has the power of "advice and consent", meaning that they have has the power to confirm executive nominees (including judges to federal courts). The confirmation of federal judges is extremely important as they are given life tenure unless impeached. The Senate confirmation of a judicial nominee has changed from largely a formality to an interrogation where nothing is off limits. But how did it get there?

Early Confirmations

Prior to the 1860s, the Senate often did not refer nominees to the Judiciary Committee for review, instead opting to skip the Judiciary Committee and proceed directly to a floor vote. In the late 1860s ,the Senate started to refer nominees who were suspected of wrongdoing or misconduct to committees for investigation. For example, in 1873 Attorney General George H. Williams was nominated to be chief justice by President Grant. However, the committee received allegations of financial misconduct, and this led to his name being withdrawn. There was barely any contention around nominees to the Supreme Court, and there was even less contention around nominees to lower courts.

A large reason for the lack of contention around judicial nominees was senatorial courtesy. Senatorial courtesy was a process in which presidents consulted the senators of the nominee's home state before appointing them. Starting in 1917, the Senate Judiciary Committees implemented the "blue slip" process. The Judiciary Committee requested that senators from the nominee's home state register their approval or disapproval of the nominee on a blue slip. The weight given to a blue slip varied based on who was chairing the committee at the time. Under some chairs, a negative blue slip killed a nominee's chances, while a positive slip virtually guaranteed confirmation. However, under other chairs, the blue slip was not given much weight and was simply a hindrance to a nominee's chances of getting confirmed. As the process has become more partisan, the blue slip process is losing influence. Currently, the blue slip tradition is followed only for district court nominees and not nominees to circuit courts or the Supreme Court.

The 1900s

Entering the 20th century, the Supreme Court became more active, frequently declaring federal and state laws unconstitutional. The Supreme Court drew more attention than ever before. This led to confirmation hearings that increased public attention, becoming increasingly contentious, and attracting increasing numbers of interest groups. This newfound attention around judicial confirmations led to an increased role for the Judiciary Committee in the confirmation process. Illustrative of this was Woodrow Wilson's nomination of Louis Brandeis in 1916.The nomination of Brandeis, the first Jewish nominee to the Supreme Court and an outspoken progressive, sparked a fierce controversy and led to the Judiciary Committee conducting lengthy hearings. The Judiciary Committee heard testimony from over 40 witnesses over the course of three months. Brandeis was eventually confirmed and had a distinguished career on the Supreme Court.

The Senate confirmations in the early 1900s were still largely a formality. The first nominee to be rejected in the 1900s was John Parker, who was rejected in 1930. John Parker faced a lot of scrutiny and was opposed vehemently by civil and labor rights groups. However, he was never summoned by the committee to testify. It was not until Felix Frankfurter's nomination in 1939 that a judicial nominee would be called to testify. Even after Frankfurter was summoned to his confirmation hearing, it was not a regular practice until the confirmation hearing of John Marshall Harlan in 1955.

The late 1960s featured increased activism by the Supreme Court and led to the Supreme Court having more visibility than ever before, much like the 1920s. Of the 24 nominations to the Supreme Court between John Parker's 1930 rejection and 1968, none were rejected and 17 were confirmed unanimously. However, between 1968 and 1972, 40% of Supreme Court nominations were either withdrawn by the president or rejected by the Senate.


The Nixon Presidency

Nixon started off his presidency with the confirmation of Warren Burger in 1969. Nixon then appointed Judge Clement F. Haynsworth, Jr., who was rejected. Nixon tried again with Judge G. Harrold Carswell, who met the same fate. Nixon eventually appointed Harry Blackmun to fill that seat followed by Lewis Powell Jr, with both being confirmed with only one vote in opposition. Nixon's next confirmation was not so easy. Nixon appointed William Rehnquist, who served in the Department of Justice. His record at the Department of Justice and his record on civil rights were closely scrutinized by the committee. However, he was eventually confirmed. Rehnquist faced even more scrutiny in 1986, when he was nominated to be the chief justice. Rehnquist survived this questioning and went on to serve as chief justice for almost 20 years.

The judicial confirmations of the 1980s and 1990s were less contentious, with most nominees being confirmed with bipartisan majorities. The two exceptions were the nominations of Judge Robert Bork and Judge Clarence Thomas. Robert Bork had a distinguished legal career: a Yale law professor, a solicitor general, and a judge on the D.C. Circuit Court of Appeals (widely regarded as the second highest court in America). In addition, he was an intellectual leader in conservative legal circles. His rejection angered conservatives and left a huge impact on future confirmation hearings. Judge Clarence Thomas was embroiled in a sexual assault scandal that almost killed his nomination. However, he survived it and went on to be confirmed by a narrow margin.


The 2000s

Increasing ideological and partisan divisions since the start of the 2000s have raised the stakes for judicial confirmations. Judges are now thrust into the center of major controversies such as abortion, campaign finance, and affirmative action. Each party wants to get enough justices’ votes on the Supreme Court to make sure that the Supreme Court's ruling is favorable to them and their party's base. As a result, both parties engaged in unprecedented minority obstruction of judicial confirmations, leading to a longer confirmation time for nominees. For the first time, lower court nominees, who were usually exempt from the contention around confirmations, were being filibustered, which effectively meant that 60 votes were required for them to be confirmed. As the pace of confirmation slowed and with vast numbers of judges left unconfirmed, party leaders began contemplating changing the rules.


Changing the Rules

In 2013, Majority Leader Harry Reid with a majority of the Senate decided to trigger the "nuclear option". The nuclear option is a process by which a filibuster is circumvented, and the threshold is lowered to a majority (51 senators of 50+vice president). However, Supreme Court nominees were not affected by the nuclear option and could still be filibustered. In 2016, conservative icon Justice Antonin Scalia passed away and President Obama appointed Judge Merrick Garland to replace him. The Republican Senate refused to grant Merrick Garland a hearing, citing the proximity to a presidential election and leaving many Democrats bitter. This exponentially increased the partisanship around confirmation hearings.

In 2017, Majority Leader Mitch McConnell with a majority of the Senate extended the nuclear option to Supreme Court nominees. This enabled the confirmation of Neil Gorsuch, as Democrats couldn't filibuster so they had no way of blocking him. President Trump's second nominee, Brett Kavanaugh, was embroiled in a sexual assault scandal reminiscent of the sexual assault scandal of Justice Clarence Thomas almost thirty years prior. In his vociferous defense speech, Judge Kavanaugh remarked that the purpose of the Senate's confirmation hearings has transitioned from "advice and consent" to "search and destroy". The Democrats tried appealing to the Republicans that they should not hold a hearing due to the proximity of the midterm elections but to no avail. When liberal icon Justice Ruth Bader Ginsburg died in September with an upcoming election in November, Democrats attempted to block the confirmation hearing of Trump appointee Amy Coney Barret by reminding Republicans of their rhetoric in denying Merrick Garland's confirmation just four years earlier. The Democrats were unsuccessful, and Amy Coney Barrett ascended to the Supreme Court.


Conclusion

When Democrats won the election in 2020 and secured the Senate in the Georgia runoff election, they eagerly awaited the possibility of confirming the nominee of their choice. However, when President Biden took office, there were no Supreme Court vacancies to fill. In an effort to make one, Democrats, especially the Progressive wing of the party, attempted to pressure Justice Stephen Breyer to retire. Justice Stephen Breyer is 82 and his health may force him to retire at any moment. Mindful of Justice Ginsburg's adamant refusal to step down in 2013 when President Obama was in the White House and when Democrats controlled the Senate, Democrats fear that if Stephen Breyer waits too long, they will not be able to confirm a favorable nominee to replace him due to the possibility of a Republican Senate or a Republican President.

Supreme Court confirmations slowly transitioned from rubber stamps to full-fledged partisan warfare. This transition was gradual but over time it has produced seismic results. Unless both parties come together and develop a bipartisan, fair process for nominations, this current trajectory appears likely to continue.

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