Disclaimer: I fully recognize the mistakes and hypocrisy of both political parties in the context of their attitudes towards SCOTUS, but for this article I will be focusing on one side of the equation, as I believe it isn’t getting enough coverage or consideration. I also want to emphasize that a) when I write “Democrats” or “Republicans,” I’m referring to the party as an institution, not its individual constituents, and b) my intention is not to articulate any verdict of merit on any justices I mention, but to analyze and critique the political environment surrounding their nominations and terms.
With just over a month before the most critical election in American history, the death of Ruth Bader Ginsberg has thrown more kerosene onto an already raging inferno of political mayhem and ill-will. Reportedly, RBG’s dying wish was that she be replaced after the next election. However, the constitution clearly provides the president with the right and duty to install justices without regard to when during their term, and all the presidents with the opportunity to nominate a justice in the final year of their term did so. Half of the country rejecting this fundamental element of American government is telling of a more endemic, insidious issue: the Democratic Party has come to view SCOTUS as a guaranteed vehicle of their ideologies and policies, not as an apolitical body to evaluate cases within themselves with the purpose of enacting justice and adhering to the law.
1. A History of the Democratically-skewed SCOTUS
Where along the line did Democrats claim SCOTUS as their own, as opposed to the people’s? As early as 1933, FDR appointed 8 out of the 9 justices to the Supreme Court in what is commonly referred to “packing the court,” brazenly claiming the SCOTUS as their own. With this crooked arrangement, FDR attempted to force New Deal legislation that radically expanded the government’s power over the economy. Although this strategy largely failed, the fact that it was considered and implemented in the first place indicates a willingness to sabotage the apolitical nature of the court for party interests.
Since 1933 Democrats have controlled the Senate for 71 years, while the Republicans have for only 16. In effect, the vast majority of Republican nominations had to be acceptable to a Democrat senate than vice versa. As you can imagine, nominations in a split government (where the Senate and President are of opposing parties), have a much lower likelihood of being confirmed than when the Senate and President share a party (united government): of the 30 successful confirmations since 1945, only 13 occurred in a split government- all of which occurred with Republican presidents and Democratic Senates. In every instance since 1945 when the government is united, presidential justice nominations have been confirmed.
This asymmetry has allowed the constitution has been eroded to accommodate a generally progressive agenda over the past several decade, passing a slew of overtly liberal cases with dubitable legal founding- facilitating gerrymandering to favor urban areas at the expense of rural districts in 1962 (Democratic voters live in urban areas at higher rates while Republicans tend to live in rural regions), designating abortion as a woman’s right in Roe V Wade at a time when national support for it was at a mere 21%, upholding the Affordable Care Act’s despite its questionable individual mandate, and leaving DACA untouched despite its allowing the executive branch to bypass Congress’ legal restrictions immigrant status and benefits- just to name a few.
Furthermore, almost all justices shift to the left over time, Republican nominees at a greater rate than Democrats, ending their terms with the same Martin-Quinn score (leftness to rightness). In the 2018 term, despite liberals having a 4-5 minority, they won the same proportion of cases, indicating that “conservative” judges sided with liberals frequently, while liberals have voted along ideological lines essentially all the time as shown by their voting records.
2. An Escalation of Vitriolic Partisanship
But it was really in 1987 when caustic slander and hysteria following Supreme Court nominations became tragically and jarringly normalized. Despite Democrats forming a “phalanx” to oppose any non-liberal judge, Reagan nominated Robert Bork, widely regarded as the most qualified nominee of the century and champion of originalism, the practice of adhering to only the written words of the Constitution rather than hypothesizing about it as a living document.
With Joe Biden leading the Judiciary Committee in a Democrat majority Senate, Senator Ted Kennedy publicly assaulted Bork before the hearing even occurred, claiming that Bork’s installment would result in an America in which “blacks would sit at segregated lunch counters.” This is an outright lie- Bork explicitly condemned segregation as an overreach of government power to dictate people’s personal lives and associations- and argued that state-mandated integration is the other side of the same coin. His stance had everything to do with individual liberty and nothing to do with race. As Solicitor General, Bork consistently enforced minorities’ rights by siding with liberal positions as often as Thurgood Marshall (generally regarded as one of the most liberal justices of all time). Although Bork’s course of reasoning may be questionable today, Kennedy’s attack invoking racism was visceral and unfounded. Biden charged Bork with supporting police raids on couples who used contraceptives and an enemy to the right of privacy and individual freedom, based on Bork’s interpretation that the constitution lacked explicit provision for such a right to privacy. Senator Metzenabum took it further, accusing Bork of promoting sterilization and sexism. Throughout the entire hearing, Bork’s nuanced, constitutionally and legally founded positions were intentionally twisted and hyperbolized.
The appalling mudslinging at the arguably the most qualified man of the century was called a “lynching” and “frankensteining” by headlines across the country, cementing the word “bork” as a verb: to savage someone to prevent them from being appointed. Feminist Florynce Kennedy used it in reference to the highly astute and reputable Clarence Thomas’ nomination (by G. W. Bush) to the Supreme Court: “We're going to bork him. We're going to kill him politically ... This little creep, where did he come from?" Thomas was bombarded with unsubstantiated and largely refuted sexual assault allegations, as well as slammed for his legitimate criticisms of affirmative action (which I can detail in a later article), and his lack of definitive opinion on Roe v. Wade, both issues which are distinctly partisan and constitutionally questionable. Thomas blames at least part of the vigor of defamation against him to the identity politics his being black entails: “People should just tell the truth: 'This is the wrong black guy; he has to be destroyed.'...If you criticize a black person who’s more liberal, you’re a racist. Whereas you can do whatever to me...that’s fine because you’re not really black because you’re not doing what we expect black people to do.”
In 2018, when Trump nominated Kavanaugh for the Supreme Court, a sexual assault allegations conveniently materialized, a low tactic that attempted to assert a moral highground. Testimonies were flaky at best; investigations yielded nothing. According to the New York Times, the Democrats painted Kavanaugh as “archconservative who would roll back abortion rights, undo health care protections, ease gun restrictions and protect President Trump against the threat of indictment.” In fact, Kavanaugh voted along relatively conservative and liberal judges at equal frequencies- in contrast to Democrat-nominated judges, who have stood their ideological ground 100% of the time, as their voting records show. He split from Trump multiple times- rejecting cases seeking to block Planned Parenthood from Medicaid funding, imposing a restriction on Apple in an antitrust case, and denying Trump’s cause to add a citizenship question on the census.
3. Democrats’ Rejection of Objectivity and Precedent
It appears that the Democratic Party refuses to look at the logistics of voting records and constitutionality. In Senator Schumer’s words: “the most important criteria for choosing a judge are their judicial philosophy and ideology.” It happened for Justice Alito, who was accused of prejudice against minorities and women based on misconstrued interpretations of Alito’s records from his 20s. It happened for Justice Roberts, who the Democrats attempted to enact a filibuster against for following in Scalia’s constitutional footsteps. It happened for Justice O’ Connor, for whom liberal pundits called on Democrat Senors to oppose due to her personal preference against abortion, despite her overt consistency in evaluating a case by itself, not by her personal beliefs.
In the wake of RBG’s death, Democratic representatives railed against Trump’s impetus to install a new justice, accusing him of attempting to seize power in an autocratic fashion. But since 1888, there have been 29 Supreme Court nominations- 10 of which occurred when the executive and legislative branches were led by different parties- made in the last couple of months of a president’s term, including those made during lame duck sessions (December) between the election and installation of a new president. In the history of the United States, the president has always nominated to fill an empty seat and thus done their part in fulfilling their constitutional duty. The Senate, which is elected by the people, then decides if this nomination passes through. Even RBG publicly stated in 2016 that it’s the president’s constitutional responsibility to nominate and the Senate to move forward with confirmation.
It seems that the Democratic Party can’t abide by this simple, fundamental rule and are fully willing to enact judicial instability to further their own interests. In 2013, Harry Reid, the former Democratic majority leader, caved to pressure from liberal judicial groups and abolished the nominee filibuster in order to allow Obama appointees in lower courts to pass through. This allowed a mere majority, as opposed to ⅔, of senators, to change senate rules- it now takes 51, instead of 60, votes to proceed on a nomination for a circuit court judge. At the time, there were hundreds of judicial vacancies at the federal level because nobody was able to acquire 60 votes from a politicized Senate since George Bush- so with the rule change, McConnell played dirty partisanship too and filled them all with Trump appointees. Later, with Trump’s nomination of Neil Gorusch, Republicans took a page out of the Democrat playbook and elevated the nuclear option to apply to SCOTUS and federal courts as well.
In the days following RBG’s death, Democratic congressmen took to the Congress floor by storm. Ro Khanna of CA proposed a bill mandating 18 year term limits and limiting nominations to the first and third years of a president’s term. Chuck Shumer and AOC are leading a coalition that’s openly considering court-packing- “nothing is off the table.” These initiatives and effectively undermining all precedent for how the Supreme Court functions- along the vein of “if it doesn’t serve us, destroy it.”
Christopher Kang, a progressive leader aimed at altering SCOTUS, claims that “what we're seeing over the last couple of days is the increasing realization that Republicans are going to exercise as much raw political power as they can to ensure that the Supreme Court remains a partisan institution.” This is peak hypocrisy, as I previously detailed- Democratic nominees have dominated the courts for over ⅘ of the time since 1933, with a relatively conservative majority only taking shape in 2018 and not even consistently voting along that characterization. Although unlikely to actually occur, these initiatives ooze a flawed, inexcusably privileged belief that the SCOTUS seats belong to the Democratic Party.
The seats of the Supreme Court of the United States ultimately belong to the American electorate, who votes in the president and Senate, who in turn designate appointees. Over the course of eighty years, the Democratic party has become accustomed to the courts enacting their will by their hold on the Senate and challenging the Constitution, and over the past thirty years, have escalated the partisanship and animus of SCOTUS nominees. This makes for a dysfunctional Court, weighed down by increasingly fervent ideological demands- those who expect their legacy of getting their way to continue, and those who want their lost ground and time compensated in any means possible.
*The author does not claim to represent all the opinions of all the members of the Postpartisan in this essay.