The weaponization of the Supreme Court
Why partisans will do anything — anything — to get their judge on the Supreme Court


As the Senate obliterates the last of its norms on Supreme Court nominations, there's a lot of talk about which party is to blame for how we got here.
Democrats are filibustering a mainstream conservative nominee! But only because Republicans refused to even consider former President Obama's nominee! Republicans are junking decades of tradition with the nuclear option! But Democrats did it first in 2013!
Even the phrase describing the Republicans' procedural move — "nuclear option" — implies a cataclysmic event.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
There are few topics in Washington where arguments are more opportunistic and less principled than those concerning the process surrounding judicial nominations. There are always a few antiwar liberals who continue to oppose wars when a Democrat is in the White House and a handful of small government conservatives against spending increases under a Republican president. But when it comes to judges, everyone toes the party line.
It wasn't always like this. But over the past three decades, since Antonin Scalia sailed through the Senate on a 98-0 vote, both parties have gradually escalated what they are willing to do to block nominees from the opposing party.
Democrats took a little over a year to travel from voting for Scalia to rejecting Robert Bork (their resistance to promoting William Rehnquist to chief justice was arguably a preview of what was to come).
Republicans took 23 years to go from voting overwhelmingly for a Democratic nominee as liberal as Ruth Bader Ginsburg — even after what happened to Bork and almost happened to Clarence Thomas — to not even holding hearings for a Democratic nominee as relatively moderate as Merrick Garland.
But behind the partisan posturing, there is one grain of principle: Senators in both parties have become more clear-eyed about what Supreme Court justices really do.
The Supreme Court has become the country's primary policymaking body on abortion, campaign finance, affirmative action, marriage, religion in the public square, and a host of other issues. On several others, like crime and gun control, one justice has more power to make policy than any five senators.
When presidential candidates talk about who they are going to put on the Supreme Court, they barely pretend anymore to care more about judicial philosophy than Roe v. Wade or Citizens United. Why then must senators play this game of make-believe during the confirmation hearings?
Many of the conventions surrounding Supreme Court nominations, both in terms of Senate procedure and national political norms, are collapsing because they don't make sense anymore. Once you view each nominee as a lifetime appointment to decide what is going to happen with abortion or the death penalty, those with strong beliefs about those issues have a strong incentive not to confirm a jurist likely to be on the other side.
Garland might be more moderate than Ginsburg, but he is just as likely to be a vote to uphold Roe. Neil Gorsuch might be more eminently qualified than other possible options, but he is more likely to vote to overturn Roe than any Democratic nominee since John F. Kennedy selected Byron White.
While I agree with Gorsuch's philosophy about the role of a judge and how it differs from that of a legislator, Democrats are not wrong to be frustrated when they can't get answers about how he would use the power the elected branches have in effect ceded to the judiciary.
Gorsuch knows his inclinations on a lot of these questions. And of course, Democrats and Republicans know it too — even if they can't get Gorsuch to say it.
This should raise questions about whether hot-button cultural issues should in fact be decided by nine people in black robes serving lifetime appointments. Since politicians seem happy to avoid these questions, however, how senators vote on Supreme Court nominees is the most influence they will ever have on the outcome of these debates.
Whether Garland or Gorsuch holds Scalia's seat is little different than which party wins a special election for a vacant Senate seat. In fact, it matters much more.
Viewing the stakes the way both parties increasingly do, it made sense for Republicans to block Garland. It made sense for Democrats to try to block Gorsuch. And it makes sense for Republicans to push Gorsuch through over their objections.
Yes, the country has gotten more partisan. But the Supreme Court has also gotten more political, and Democrats and Republicans are both waking up to that fact.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
W. James Antle III is the politics editor of the Washington Examiner, the former editor of The American Conservative, and author of Devouring Freedom: Can Big Government Ever Be Stopped?.
-
What does the Le Pen verdict mean for the future of French politics?
TODAY'S BIG QUESTION Convicted of embezzlement and slapped with a five year ban on running for public office, where does arch-conservative Marine Le Pen go from here — and will the movement she leads follow?
By Rafi Schwartz, The Week US Published
-
Discount stores were thriving. How did they stumble?
The Explainer Blame Walmart — and inflation
By Joel Mathis, The Week US Published
-
Kaja Kallas: the EU's new chief diplomat shaping the future of European defense
In the Spotlight Former Estonian Prime Minister's status as an uncompromising Russia hawk has gone from liability to strength
By David Faris Published
-
The JFK files: the truth at last?
In The Spotlight More than 64,000 previously classified documents relating the 1963 assassination of John F. Kennedy have been released by the Trump administration
By The Week Staff Published
-
'Seriously, not literally': how should the world take Donald Trump?
Today's big question White House rhetoric and reality look likely to become increasingly blurred
By Sorcha Bradley, The Week UK Published
-
Will Trump's 'madman' strategy pay off?
Today's Big Question Incoming US president likes to seem unpredictable but, this time round, world leaders could be wise to his playbook
By Sorcha Bradley, The Week UK Published
-
Democrats vs. Republicans: who are the billionaires backing?
The Explainer Younger tech titans join 'boys' club throwing money and support' behind President Trump, while older plutocrats quietly rebuke new administration
By Harriet Marsden, The Week UK Published
-
US election: where things stand with one week to go
The Explainer Harris' lead in the polls has been narrowing in Trump's favour, but her campaign remains 'cautiously optimistic'
By Harriet Marsden, The Week UK Published
-
Is Trump okay?
Today's Big Question Former president's mental fitness and alleged cognitive decline firmly back in the spotlight after 'bizarre' town hall event
By Harriet Marsden, The Week UK Published
-
The life and times of Kamala Harris
The Explainer The vice-president is narrowly leading the race to become the next US president. How did she get to where she is now?
By The Week UK Published
-
Will 'weirdly civil' VP debate move dial in US election?
Today's Big Question 'Diametrically opposed' candidates showed 'a lot of commonality' on some issues, but offered competing visions for America's future and democracy
By Harriet Marsden, The Week UK Published