Opinion

The last Democratic SCOTUS appointment?

Ketanji Brown Jackson could be the last liberal SCOTUS appointment for the foreseeable future

With her confirmation vote on Thursday, Ketanji Brown Jackson became the first Black woman to be appointed to the Supreme Court, the first Justice to have served as a public defender, and the beneficiary of one of the speediest confirmations in recent history, exceeded in the past 40 years only by the last appointee, Justice Amy Coney Barrett. And though her confirmation margin was narrow, she did receive the support of three Republican senators — Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), and Mitt Romney (R-Utah) — which is comparable to the Democratic support that Donald Trump's first nominee, Neil Gorsuch, received.

Notwithstanding the extreme rhetoric surrounding her nomination, then, it would seem the system ultimately worked. But it isn't going to work this way for much longer. Unless something fundamental changes about the shape of American politics, Justice Jackson might be the last successful Democratic nomination for a long time.

The reason for this is the increasing nationalization of Senate elections and that chamber's ever-more pronounced tilt against Democrats. Back in 2006, when President George W. Bush faced a massive midterm backlash, Democrats won more than 52 percent of the popular vote for the House of Representatives and took the Senate by capturing seats in states like Missouri and Ohio while retaining seats in deep-red territory like Nebraska and West Virginia. And when Barack Obama won the presidency in 2008 with nearly 53 percent of the popular vote, the Democrats won an overwhelming 59-seat Senate majority, capturing seats in Republican territories like Alaska and North Carolina and retaining seats in states like Louisiana and Arkansas that Obama lost badly.

That's not the way Senate elections have gone recently. In the 2018 midterm election widely viewed as a referendum on the Trump presidency, Democrats won more than 53 percent of the popular vote for the House — but they actually lost seats in the Senate despite winning new seats in Nevada and Arizona and successfully defending incumbents in red states like Ohio and West Virginia. And in 2020, when Joe Biden won the presidency with over 51 percent of the popular vote, Democrats only clawed their way to a 50-50 Senate with two narrow wins in Georgia's runoff elections.

Projecting that pattern into the future, the prospects for Democratic gains in the Senate are grim indeed. 2022 should have been a promising year for Democrats: They're defending far fewer seats than Republicans, all of them in states that President Biden won, and Republicans are retiring in Pennsylvania, Ohio, North Carolina, Alabama, Missouri, and Oklahoma. Yet the Democrats are nonetheless on the defensive, with a real risk of losing seats in Arizona, Nevada, Georgia, and possibly New Hampshire. 2024, meanwhile, looks like a nightmare for Democrats, with 23 out of 33 seats to defend (including two independents), and vulnerable incumbents in red states like Montana, Ohio, and West Virginia along with swing states like Michigan, Wisconsin, Nevada, and Pennsylvania.

The problem is the geography of the two parties' respective coalitions. President Biden won exactly half of the states, but he won three of them by less than 1 percent (Arizona, New Mexico, and Wisconsin) and three more by less than 5 percent (Pennsylvania, Nevada, and Michigan). Only two Trump states went by less than 5 percent, none by less than 1 percent. There are only 16 states where Biden won by more than 10 percent, and Democrats already control all of those their Senate seats. There are 20 where Trump did, and two of them have Democratic senators. The implication is that in a highly nationalized political environment, and with the two parties' coalitions structured as they are today, Democrats will control the Senate only once in a blue moon.

That wouldn't matter much for the Supreme Court if the Senate regularly confirmed qualified nominees appointed by presidents of the opposite party. But that norm went by the wayside longer ago than most people probably realize. The last Supreme Court nominee to be confirmed by a Senate controlled by the opposition party was Clarence Thomas over 30 years ago. And even in a friendly Senate, the norm of bipartisan support was gone long before Trump's presidency. Twenty-two Democrats voted against John Roberts when George W. Bush nominated him for Chief Justice, and 40 Democrats voted against Samuel Alito. David Souter was the last Republican nominee to the Supreme Court to win the overwhelming support of Democrats, while Stephen Breyer was the last Democratic pick to be similarly supported by an overwhelming majority of Republican senators.

The kicker, though, is that these two developments are closely related, which makes it hard to see how older norms could be restored. As Republicans will gladly inform you, Democrats were the first party to politicize the Court, derailing Robert Bork's nomination, attacking Clarence Thomas, and opposing Samuel Alito for overtly ideological reasons. Democrats would counter that it's Republican nominees who have gotten increasingly radical. From a political perspective, though, what matters is that Republicans have successfully nationalized Senate elections in part by making Supreme Court nominations a crucial issue. Indeed, the backlash against Democrats for their attacks on then-nominee Brett Kavanaugh was a major factor in powering Republicans to their 2018 Senate victory (as I predicted it might be at the time). Sen. Joe Manchin's (W.V.) solitary Democratic vote to confirm is probably what saved his seat, which he retained by less than a 1 percent margin.

The Democratic and Republican bases are now extremely far apart on the hot-button social issues that drive political engagement over the Supreme Court, and both parties are increasingly dependent on their bases for funding. That makes it exceptionally difficult for either party to acquiesce in a nomination their base despises, even if that opposition cannot actually derail the nomination — hence the outrageous accusations and insinuations of being soft on pedophiles and terrorists aimed at Jackson by the likes of Sens. Josh Hawley (R-Mo.) and Lindsay Graham (R-S.C.). If the Senate had a two-vote Republican majority, Romney, Murkowski, and Collins would have come under even fiercer pressure not to break ranks. Now imagine if Justice Clarence Thomas were to die tomorrow. The battle over his replacement could become a dominant issue in the 2022 midterms, and if Republicans prevailed, they could hold his seat open until 2024, or even beyond — the Merrick Garland nomination battle on endless repeat.

Ironically, the best prospect for change might be for Republicans to get their way. If the Supreme Court were to overturn Roe v. Wade, for example, a large number of states would quickly enact severe abortion restrictions or outright bans. That might reduce the political salience of the Supreme Court all by itself — but the real change might be in the political salience of state legislative elections, since those elections would become far more consequential in a world where the Supreme Court gave them a freer hand. In red states like Kansas that are rapidly urbanizing, that might mean Republicans start to pay a political price for extreme positions, opening up the prospect of more robust two-party competition, and ultimately end the Republican Senate advantage.

That hope depends, however, on Democratic willingness to fight those battles along the ideological lines that prevail in each individual state. If they prefer to continue the recent trend in both parties toward nationalization, that will play right into Republican hands. In the meantime, so long as they face a greater electoral risk from acquiescence than from opposition, Republicans could make Supreme Court appointments a privilege for Republicans only.

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