July 2, 2022

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What makes for a qualified Supreme Court nominee? | Opinion

5 min read

As Ketanji Brown Jackson ascends to the Supreme Court, it is valuable to assess how her nomination shaped our understanding of what it means that a judge is “qualified” to serve on the nation’s highest Court.

Is Jackson qualified, as defined by her résumé and the path she has followed through the judiciary? Of course. But gone are the days of assessing potential justices on the basis of book smarts, pedigree and days spent on the job. The obvious defining factor today is judicial philosophy, which is why Republicans not named Romney, Collins or Murkowski voted not to confirm Jackson.

Overwhelming Democratic opposition to Republican nominees is fueled by the same instinct. No one can argue that the three Trump nominees—Gorsuch, Kavanaugh and Barrett—or the George W. Bush ones—Roberts and Alito—lacked the background to be considered worthy. But each came up against a wall of Democratic opposition because their views on the law were unacceptable to liberals.

Throughout history, presidents have usually been afforded Senate support for their Supreme Court choices. Senators have often voted to confirm justices with whom they profoundly disagreed. Every Senate Democrat voted for the father of modern textualism, Antonin Scalia, in 1986. As recently as the Clinton presidency, Stephen Breyer and Ruth Bader Ginsburg sailed through with opposing Republican votes in the single digits.

So how have we arrived in our current environment of political divisiveness over every nomination?

Ronald Reagan’s selection of Robert Bork in 1987 was not the first broadly contested nominee. The Senate rejected Richard Nixon’s first two picks to fill the vacancy left by the resignation of Abe Fortas in 1969—Clement Haynsworth and G. Harrold Carswell—before Harry Blackmun rose to the Court on a unanimous vote in 1970.

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But it was the Bork hearings that moved the process into new territory, an era when philosophical differences provoke an army of “no” votes. Democrats lined up against an eminently qualified nominee, fueled by the incendiary rhetoric of Ted Kennedy, who warned that “Robert Bork’s America” would feature segregated lunch counters, warrantless midnight police raids and the banishment of evolution from schools.

Those malicious exaggerations met no standard of accuracy, but they worked. Three years later, the George H.W. Bush pick of David Souter became the last Republican pick to breeze through comfortably. Perhaps Democrats foresaw how often Souter would satisfy them by deviating from the constitutional fidelity conservatives prize.

It is that constitutional fidelity that compelled conservatives to vote against Judge Jackson. Her supporters can be expected to smear the opposition as racist or sexist, but a strict constructionist of her race and sex would surely have won GOP votes. Since President Biden was never going to appoint a candidate of that temperament, here we are.

WASHINGTON, DC – APRIL 07: U.S. President Joe Biden and Judge Ketanji Brown Jackson watch together as the U.S. Senate votes to confirm her to be the first Black woman to be a justice on the Supreme Court in the Roosevelt Room at the White House on April 07, 2022 in Washington, DC.
Chip Somodevilla/Getty Images

Is it a bad place to be? Should we return to the days when the Senate rubber-stamped nearly all the president’s choices? While partisan feuds have filled days with drama at recent confirmation hearings, they have also revealed the rationale behind the objections.

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Robert Bork was a constitutionalist. This was unacceptable to the Democrats of the mid-’80s, and it has remained so. Reagan responded to the Bork fiasco with a more moderate choice, Anthony Kennedy, who became the last unanimously approved justice.

In the George W. Bush years, John Roberts received 22 “no” votes, Samuel Alito 42. In the Obama era, Republicans did not unify in opposition to Sonia Sotomayor (31 “no” votes) and Elena Kagan (37), but the pattern was growing familiar. Republicans began adding to the trend of turning thumbs down for philosophical reasons on nominees who were otherwise technically qualified.

Republicans and Democrats have developed distinct track records for how they express their opposition. Just four years after Bork, in the Bush 41 nomination of Clarence Thomas, Democrats recognized a strict constructionist and weaponized Anita Hill to build a narrative of sexual harassment that remains a he-said-she-said dispute to this day. While Hill enjoys the mantle of a women’s rights heroine, Thomas is now our longest-serving justice.

The Neil Gorsuch hearings, in retrospect, were relatively uneventful in view of the spectacles that would follow. Gorsuch was approved 54-45, with three Democrats supporting him. But Gorsuch replaced Scalia, whose textualist shoes would be hard to fill. When Anthony Kennedy retired, Democrats knew Trump was not going to name someone as friendly to abortion rights and gay rights as Kennedy had been. Consequently, the next Trump pick—Brett Kavanaugh—had to be personally destroyed.

That smear failed, as did the attempt to paint Amy Coney Barrett as a ghoul who would roll back women’s rights while stripping away the health insurance of the needy. Democratic bottom-feeding has become so commonplace that Republicans sought to draw instant distinctions the moment Biden nominated Judge Jackson. “I can assure you that your hearing will feature none of that disgraceful behavior,” promised Sen. Ted Cruz (R-Tex.). “No one is going to inquire into your teenage dating habits. No one is going to ask you with mock severity, ‘Do you like beer?’”

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Republicans did ask Jackson about her rulings and opinions, however, finding sufficient evidence of judicial activism to oppose her. That opposition did not prevail, and she will be seated ion the Supreme Court to fill the seat of the retiring Stephen Breyer.

Another chapter has been written in the tradition of senators voting against nominees of the opposite party. But let the difference be understood: while Republicans oppose Democrats’ picks because they waver from the Constitution, Democrats oppose Republicans’ picks because they adhere to it.

Mark Davis is a talk show host for the Salem Media Group on 660AM The Answer in Dallas-Ft. Worth, and a columnist for the Dallas Morning News and Townhall.

The views expressed in this article are the writer’s own.

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