The Sham That is the Supreme Court Confirmation Process

The U.S. Senate likes to call itself the “world’s greatest deliberative body”.  That self-proclaimed title has always been more hubris than truth, but the U.S. Senate has had its proud moments throughout history.  The framers of the Constitution generally wrought well when it created the Senate, whose six-year terms and larger constituencies have generally produced consistently more moderate and thoughtful representatives of the people than the House.

The long terms means they are not constantly running for election and can act more independently, less dependent on the quickly changing winds of political opinion.  The larger constituencies mean their constituents have a wider variety of interests and political opinions to be taken into account, which means most senators tend more toward moderation than extreme views.  The Senate has usually had a more collegial  and less adversarial atmosphere than the House of Representatives, and has produced more true bipartisan cooperation.

One of the Senate’s most solemn duties has always been the confirmation process, whereby most high-ranking officials nominated for the administration or the federal judiciary must be confirmed by a vote of the Senate.  This is a very important duty, but is particularly important for the judiciary, which carries a lifetime appointment.  Any mistake made in allowing an unqualified or unscrupulous person onto the bench can have consequences for many years.  In terms of the Supreme Court it can literally change our country.

There is a lot of noise and furor over most Supreme Court nominations, as both parties joust and posture for the best political effect.  Some other nominations draw similar attention, but only if someone on the relevant committees thinks there is political hay to be made.

Otherwise almost all nominations sail through with little attention and no objection.  Every year, many almost completely unqualified persons are nominated and confirmed to positions of significant responsibility without more than a cursory review.  Some of them have significant red flags in their backgrounds that are glossed over or ignored.

The whole process is a sham perpetrated by both parties because they have a shared interest in being able to deliver the spoils of victory to party loyalists, and being able to count on the political loyalty (as opposed to loyalty to country) of key officials when they are in power.  Political loyalty trumps competence every single time.

Even those nominations which draw attention and furious political debate are a sham, and that is particularly true of Supreme Court nominations.  It’s all a show for the public’s consumption, and decisions to vote or not for confirmation are almost always made for reasons of political convenience, rather than over real doubts about fitness for office or competence.

Over the years, nominees of both parties have basically been told to lie, dodge and avoid giving direct answers in both their official hearings and their private interviews.  I’ve done such coaching myself as I prepared ambassadorial and assistant secretary nominees for their hearings.  The purpose is to avoid taking definite positions on anything that might give someone an excuse to vote against them.  So they lie, and they dance, and they deflect.  All to seem unobjectionable, and give Senators a fig leaf to hide behind as they cast their votes.  Some senators, for political reasons, will loudly roar their displeasure at the deception and evasion as senators of the other party fight to defend those same nominees.  All of them know that if the roles were reversed and their own party was in power, they would be doing the opposite and voicing moral outrage or defending as fit the political needs of their party.  It’s all a show for our benefit.  To influence how we vote and who we support.

In the end, the President generally gets the vast majority of those he nominates, and the opposition usually gets to crow over a few scalps taken, when a nominee stumbles over some incident in their past.  On occasion, the process even works as intended, and a true bad apple is kept out of office.  In general, not, though, particularly for lower level appointees.

The process has steadily gotten more cynical and more politicized over the years, and both parties share the blame for that.  Both parties have taken to appointing more and more partisans and fewer moderates and technocrats to the bench and their administrations.  Both have valued political loyalty above all else.  More intense and intrusive “vetting” has reduced the chance of someone with an independent streak slipping through.

I would say the Republicans have been worse in recent years, but it is only a mater of degree.  Their logjamming of virtually all Obama appointments led directly to the use of the “nuclear option” which removed the extremely valuable 60 vote rule which generally ensured that lower level judges and administration figures could not be appointed with purely partisan support.  Republicans also made the ethically unconscionable, cynically political decision to deny President Obama’s choice for the Supreme Court, the eminently qualified and politically moderate Merrick Garland, a hearing and a vote.  Which allowed President Trump to nominate and confirm the much more partisan Neil Gorsuch to the same position after the expansion of the exception to the 60 vote rule to include Supreme Court justices.

Which brings us to Brett Kavanaugh, another deeply partisan pick on the verge of being confirmed to fill the seat of the more moderate Anthony Kennedy.  Serious questions have been raised about the honesty and integrity of Mr. Kavanaugh.  More recently, an allegation of sexual misconduct has arisen as well.  The first, in my opinion, should disqualify him for office.  The second, if even proven likely, should as well.

Nonetheless, the sham process goes on, with most senators playing their predetermined political roles and posturing for their respective constituencies.

Kavanaugh’s nomination may indeed go down to defeat, if just a couple of Republican senators defect.  This may indeed happen, since a couple are retiring and no longer have to participate in the sham.  Some who aren’t retiring may even vote their conscience.  Stranger things have happened.

But the whole process stinks and is in bad need of reform.  The Senate needs to do its job on all nominees, not just those they can score political points on.  Administrations need to appoint more people based on the strength of their qualifications rather than the strength of their political loyalty.  And the American people need to hold them both to account if they don’t.

We deserve better than this sham of a process.

2 thoughts on “The Sham That is the Supreme Court Confirmation Process

  1. To be truthful, they haven’t rushed all that much to date, falling pretty much within historical norms for timing. The thing they can be most criticized for (other than the obvious Merrick Garland hypocrisy) is being less forthcoming about documents than is usual. Their reasons to get a vote done before November are obvious. They may lose their majority then, and given the Garland precedent, I don’t doubt that Dems will refuse to approve any nominee for the next two years. They could try to approve during lame duck session, but I think they would have some defections if that is the case.


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