The weaponization of the Supreme Court

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

Power, by any means.
(Image credit: Illustration by Lauren Hansen | Images courtesy iStock)

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.

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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.

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W. James Antle III

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?.