Serena Barish is a freshman in the College who serves as an assistant editor for
the Law Review.
On January 27, 2022, Associate Justice Stephen Breyer made the announcement that he would be retiring from the United States Supreme Court. President Joe Biden has since nominated Judge Ketanji Brown Jackson to fill his place.[1] Now, as is provided by Article II, Section 2 of the Constitution, the “Advice and Consent of the Senate” is required.[2] Today, these words have come to mean confirmation hearings, which are scheduled to begin on March 21, 2022.[3] As it stands, the Democratic Party has the ability to confirm Jackson even if no Republican Senators vote to do so, due to Vice President Kamala Harris’s tie-breaking vote.[4] Still, these hearings will force the American public to reckon with the partisanship and bias that confirmation hearings have come to signify.
Confirmation hearings’ inherent tension is underscored by their history. Supreme Court confirmation has not always been so contentious. In fact, there is nothing written into the Constitution about holding confirmation hearings specifically. The first public confirmation hearing was not held until 1916, when Louis D. Brandeis was nominated for the Supreme Court. Brandeis was a controversial figure due to his legal activism and being the first Jewish nominee for this position.[5] In this way, Justice Brandeis distinctly demonstrates the two leading factors that have transformed confirmation hearings into the calamity that they are today: politics and hostility. Now, confirmation hearings resemble a battle, with these forces as their defining feature.
Political division is one of the main tensions at play in Supreme Court confirmation hearings. Despite the claim of Alexander Hamilton that the Courts “will always be the least dangerous” branch of government, [6] all of the early presidents demonstrated a very clear awareness that it mattered greatly who was sitting on the court.[7] More recently, Justice Scalia attributed the political divisiveness of these confirmations to the larger decisions the court is making.[8] However, Scalia’s analysis seems wildly flawed for two main reasons. First, even as the Court grew immensely in influence as the Warren Court, senators from one party were still willing to vote to confirm nominees of the other.[9] Second, the court still uses the political question doctrine, a principle of justiciability, in which the Supreme Court will decline to rule on cases that ask a question that must be answered by the political branches of government. This principle has been applied throughout the history of the Supreme Court, with Baker v. Carr (1962) often cited as the most prominent example.[10] Though the court does make decisions with great influence, this principle seems to minimize Scalia’s grounds. In this sense, it is not the power of the Supreme Court that is to blame as they avoid this overt partisanship but rather the animosity within the legislature itself.
Until the nomination of Robert Bork and Antonin Scalia, there was no perception of the existence of an “originalist” interpretation, thus a converse interpretation did not exist but was instead the default. Since their nomination, questions around the method of constitutional interpretation have become the norm.[11] In turn, opening this door seems the likely cause for the emergence of questions around the potential decision-making of justices, increasing the politicization of the entire process and thus making these divides much more sharply pronounced, as has been clearly demonstrated in recent hearings.The second clear issue that Brandeis illuminates is the role that hate plays in these hearings. The main cause of the first confirmation hearing was anti-Semitism. Justice Felix Frankfurter was the first nominee to appear in person before the committee to take questions, which was likely due to anti-Semitism as well.[12] That being said, another popular explanation for Frankfurter’s questioning was that directly before him, Hugo Black was confirmed very quickly, only for his proximity to the Ku Klux Klan to then be revealed.[13] As a result, the Judiciary Committee at the time promised to conduct a more open process to make sure they could be sufficiently informed and hopefully avoid this in the future. The potential of these hearings to be used positively is also exemplified in their use of speaking out against Clarence Thomas and Brett Kavanaugh, despite the mishandling of both of their cases. In this regard, there is a clear tension in these hearings between the preservation and prevention of hate.
Finally, this leads to the question of Judge Ketanji Brown Jackson’s hearing. It is clear that Judge Jackson is an abundantly qualified candidate. In addition to the unique experience of having worked as a public defender, she has many similar qualifications to Justice Breyer, as well as her experience on the US District Court for the District of Columbia and the US Court of Appeals for the DC Circuit.[14] However, in the polarized state of our government today, especially in the context of this larger history, even this may not be enough to garner support from the Republican Party. When she was confirmed in 2021 to the Court of Appeals, the second most powerful court in the US, Jackson received the votes of three Republican Senators. Among them was South Carolina Senator Lindsey Graham, who has now said that he is leaning towards voting against her confirmation. Graham has voted for every Supreme Court nominee since 2003, when he came to the Senate, which would make this vote fairly shocking, especially given that even Senate Minority Leader Mitch McConnell has said that Jackson is qualified to sit on the Supreme Court.[15] Republican Senator Susan Collins, who also voted to confirm Jackson previously, has said that Jackson is “impressive”, but is waiting until Senate hearings to decide how to vote.[16] Regardless, Jackson will almost certainly be confirmed. Even still, as Ketanji Brown Jackson is the first Black woman to ever be nominated for the Supreme Court, the hate and political motivations that have led to the current status of confirmation hearings will certainly be at play in determining if she is able to get any votes from across the aisle.
[1]President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, THE WHITE HOUSE (2022), https://www.whitehouse.gov/kbj/
[2] U.S. CONST. art. 2, § 2
[3] Katie Barlow, Jackson’s nomination hearings will begin March 21. Here’s what to expect., SCOTUSblog (3 March 2022), https://www.scotusblog.com/2022/03/jacksons-nomination-hearings-will-begin-march-21-heres-what-to-expect/
[4] Id.
[5] Id.
[6] The Federalist No. 78 (Alexander Hamilton)
[7]Jeffrey Rosen, History of Supreme Court Confirmation Hearings, NATIONAL CONSTITUTION CENTER (6 September 2018), https://constitutioncenter.org/interactive-constitution/podcast/the-history-of-supreme-court-confirmation-hearings
[8] Rosen, supra note 5
[9] Id.
[10] Baker v. Carr, 369 U.S. 186 (1962)
[11] Rosen, supra note 5
[12] Id.
[13] Id.
[14] President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, supra note 1
[15] Alexander Bolton, Graham signals he’s a likely ‘no’ on Biden SCOTUS pick, THE HILL (9 March 2022), https://thehill.com/homenews/senate/597432-graham-signals-hes-a-likely-no-on-biden-scotus-pick
[16] Oma Seddiq, Susan Collins says she had a ‘lengthy and productive conversation’ with Biden’s ‘impressive’ Supreme Court nominee, INSIDER (9 March 2022), https://www.businessinsider.com/susan-collins-praises-bidens-supreme-court-nominee-as-impressive-2022-3
