Partisanship and the Supreme Court Nomination

SCOTUS confirmation continues to divide Democrat and Republican senators, both accusing each other of hypocrisy.

By James Molnar 
News Reporter

As the confirmation of Judge Amy Coney Barrett continues, many accusations of hypocrisy have been levelled from both sides of the political aisle. In 2016, when Former President Obama nominated Judge Merrick Garland for the Supreme Court, Democrats fought adamantly to push through the nomination, while Republicans strove just as hard to block it. Now, just four years later, the two parties have seamlessly switched positions.

There are some differences between Barrett’s nomination and Garland’s which explain this to some degree. For one thing, Judge Barret’s nomination comes closer to the election than did that of Judge Garland. Democrats argue that the confirmation should not be “rushed” through before the election. They also believe that the people should be allowed to vote indirectly on the Supreme Court justice by electing a president prior to the appointment. In addition, as Senator Kamala Harris points out, “we are in the middle of a deadly pandemic.” She argues that the senate’s focus should be directed to passing relief bills, rather than holding confirmation votes and hearings.

For their part, Republicans argue that there is a substantive distinction between this nomination and the one during Obama’s presidency. As Senator Ted Cruz observes, there have been 29 occasions in the country’s history where a Supreme Court vacancy opened up during an election year. The past presidents have nominated justices in all 29 of these cases. We may divide these instances into those in which the president and Senate were of the same party and those where they were from different parties (a divided government). In 19 of the aforementioned 29 cases, the president and Senate were from the same party and the justice was confirmed in 17 of those cases. 

However, of the 10 cases where the government was divided, the justice was confirmed in only 2. Therefore, Senator Cruz argues, there is a historical precedent in the case of election year vacancies for a justice to be confirmed when the president and senate are of the same party, but not when they are of different parties. At the time of President Obama’s nomination, there was a divided government, but Barrett’s nomination comes at a time of unified government.

The distinctions outlined above make it more difficult to accuse either side of blatantly hypocritical partisanship.  Even so, the fact that the parties are split evenly across political lines regarding this confirmation hearing, suggests that the politicians stances are based more on the desire to achieve political ends, rather than their professed concerns about timing and precedent. 

This was further evidenced by the proceedings in Barrett’s confirmation hearing. Many senators made impassioned pleas regarding the Affordable Care Act and Roe v. Wade. They also spent much of their time asking Judge Barrett questions about her political stances, particularly on those two issues, despite the fact that the judge had taken a vow not to answer any such questions. In many ways, Barrett's confirmation hearing represented a crescendo of the battles which have been playing out for many years over the governments proper role in regulating both healthcare and abortion.
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These observations have led many to conclude that the politicians from both parties are more concerned with implementing their own policy visions, by practically any means necessary, than on observing any abstract rules of judicial nomination. On the Supreme Court itself, the question of judicial activism, whether Supreme Court judges should embroider their interpretations of law with their own opinions, has long been debated. While the current nominee, Judge Barrett, has advocated strongly against such activism on the Court, it is unclear what role partisanship should play in the appointment of Supreme Court justices.