Recently, the Supreme Court has been dominating the news cycle with the nomination of Judge Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg.
Since the Garland nomination and the Kavanaugh confirmation hearings, the Supreme Court nomination process has become increasingly political.
Judge Merrick Garland was not given a hearing after being nominated by President Barack Obama in 2016. Republicans cited that no president has successfully nominated a justice to the Supreme Court in an election year when the Senate and White House are controlled by different parties.
Now, a similar situation is coming back to bite Republicans.
However, Democrats are also just as guilty of breaking precedent in the Supreme Court nomination process. For hundreds of confirmations before the Garland nomination and the Gorsuch hearings, senators would vote for a nominee that came from a president from a different political party.
During the confirmation battle for Justice Kavanaugh in 2018, Senator Lindsey Graham told members of the committee that he voted to confirm both Justices Kagan and Sotomayor.
It became apparent in the 2018 confirmation hearings for then-judge Kavanaugh that the tide had shifted relating to judicial nominations. Instead of the senate playing their precedented “advice and consent” role, the vote to confirm fell on party lines.
The nomination process used to be about the character and fitness to serve on the highest court of the land. Now, senators ask leading questions about nominee’s judicial philosophies and try to pry opinions of future cases out of nominees. There is nothing off the table, from asking about overturning Roe v. Wade to asking about political affiliations.
In the first day of the Amy Coney Barrett hearings, nearly all Democrat members of the Judiciary Committee referenced a case on the Affordable Care Act (ACA) that will be heard by the high court in November. These senators have all pre-supposed that if Amy Coney Barrett becomes a Justice, she would vote to strike down the ACA.
By introducing a political litmus test for Supreme Court nominees, Democrats are guilty of politicizing the “advice and consent” role. The future of confirmation hearings will look more like a debate stage than confirmation hearings of years past.
Prior to the Gorsuch confirmation in 2017, justices to the Supreme Court routinely received 75+ votes from the Senate and cruised to the bench. In fact, Justice Ruth Bader Ginsburg was confirmed with a vote of 96-3.
The only Democrat to go against party lines in the Kavanaugh confirmation vote was Senator Joe Manchin for West Virginia. This ensured that Kavanaugh had the votes needed to be confirmed to the Supreme Court.
Interestingly enough, the only political part of the Supreme Court is the nomination process.
The Supreme Court has refused to hear cases on important hot-button issues like the Second Amendment and high-profile First Amendment cases. Keeping politics out of the high court is as important as ever. The separation of powers clearly gives these powers to the two other branches of government.
Looking into the future, the confirmation process will likely only be more and more difficult and the back-and-forth game being played by both Democrats and Republicans will continue to degrade the purpose of the independent judiciary as outlined in Federalist No. 78.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.