Playing the SCOTUS game

Don’t hate the player, hate the game.

This colorful phrase applies a variety of situations, such as romantic entanglements, but I believe it wonderfully summarizes the current Supreme Court (SCOTUS) news.

As most of you already know, Associate Justice the Notorious B.I.G., aka Ruth Bader Ginsburg, passed away last Friday. Yesterday, President Trump nominated Amy Coney Barrett to succeed her.

Last week, I speculated that it would not be so easy to replace Judge Ginsburg.

I should’ve remembered the above wisdom and thought about it in terms of realpolitik.

SCOTUS judges serve for life. As CNN reported, the Harvard Business Review predicted that the average justice will serve for 35 years or more from 2017–2117 as opposed to judges from 1917–2017, who served 18 years on average.

Why would Republicans or Democrats play nice when they have the chance to shape the country for more than a generation?

It’s simply too hard to stop the tide of gamesmanship. If you don’t swim, you sink.

For most millennials, “the game” of politics has been unbelievably polarized. The system is being absolutely throttled by partisan games. The SCOTUS has been following suit, despite the founders intention for it to be the (more) apolitical political branch.

When did it become political?

PBS News Hour reflected on this during the Kavanaugh hearings.

Those seem like a life ago, don’t they? I might trade them for COVID….

On second thought, no.

PBS interviewed George Washington University poli sci professor Sarah Binder, who suggested that the court’s polarization began in the 1970s, on the heels of the presidency and Congress’s increasing polarization. Looking at the U.S. Senate’s official record of the votes on nominees demonstrates how party has long informed confirmation vote.

While there were contentious votes before, the nomination of Court of Appeals judge Robert Bork in July 1987 is when the modern SCOTUS fully descended into the lovely drug of polarization. The hearings were so nasty that his last name became an adjective meaning “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”

After Judge Bork, confirmation votes oscillated between bi-partisan acceptance and polarized circuses. Right after Bork got ‘borked’, Anthony Kennedy was confirmed 97–0 on February 3, 1988. A couple of years later, David Souter was confirmed on October 2, 1990 90–9 in another near-consensus vote. The Senate’s party composition was 55/56 Democrats and 45/44 Republicans in ’90 and ’91, making these votes truly bipartisan.

The bipartisanship gave way to a polarized circus. By a vote of 52–48, Clarence Thomas was confirmed on October 15, 1991. Those who lived through it or have read about it know how the attacks against Judge Thomas centered around Anita Hill, a former employee of his who accused him of sexual assault.

The bipartisanship returned with RBG herself, confirmed 96–3 on August 3, 1993 and Stephen Breyer, confirmed 87–9 on July 29, 1994. There were 57 Democrats and 43 Republicans in the Senate at this time. Important to note: the following elections found the Republicans taking back control of both houses, which had not been done since 1954.

A pattern emerged here. After some ‘contentious’ nominations/confirmations, such as Justice Thomas’s, there is a ‘consensus’ confirmations, such as RBG’s.

There were no more nominees for over 10 years. John Roberts, the current Chief Justice, was confirmed 78–22 on September 29, 2005, in a somewhat bi-partisan vote. White House Counsel Harriet Miers, tapped by Bush the Younger to replace the retiring Sandra Day O’Connor, was opposed by both parties for her lack of judicial experience and ties to the president. Her nomination was withdrawn, never receiving a vote. Samuel Alito was confirmed on January 31, 2006 by a much narrower 58–42. For these votes, the Senate had 55 Republicans, 44 Democrats and 1 Independent who caucused with the Dems.

Justice Roberts was a ‘consensus’ nominee, receiving almost 80 votes. Ironically, Counsel Miers united both parties against her. Judge Alito underwent a fairly contentious confirmation, receiving 22 fewer votes than Justice Roberts.

Barack Obama’s 2008 election to the presidency polarized American society even more, and the SCOTUS was not immune. Sonia Sotomayor and Elena Kagan were confirmed on August 6, 2009 68–31 and August 5, 2010 63–37, respectively. The Senate had 57 Democrats, 41 Republicans and two independents, who caucused with the Dems.

Justices Sotomayor and Kagan could be considered ‘consensus’ candidates whose nomination wasn’t in danger and who received more than 5 votes from the opposing party.

After Antonin Scalia passed in 2016, Merrick Garland didn’t receive a vote, due to power politics. The Senate had 54 Republicans, 44 Dems and 2 Independents who caucused with the Dems.

After confirming two nominees, the Senate had enough of playing nice. Justice Garland was a ‘contentious’ nominee, not even receiving a vote like Counsel Miers, despite being more qualified.

The past two confirmations have been narrow. Neil Gorsuch was confirmed 54–45 on April 7, 2017, replacing Justice Scalia. Brett Kavanaugh, after some of the most contentious hearings in U.S. history, was confirmed 50–48 on October 6, 2018.

We are still in a ‘contentious’ phase with Justice Barrett. Senators Richard Blumenthal from Connecticut and Mazie Hirono from Hawaii, members of the Judiciary Committee, vowed to not meet with Justice Barrett before the hearings, signaling how nasty this October is going to be.

Will there be a ‘consensus’ candidate after Justice Barrett to restore the pattern of the last 35 years?

I doubt it.

At this point, we are far, far, far away from the unanimous/near unanimous votes that Scalia or RBG enjoyed. The SCOTUS keeps drifting further and further into partisan politics. Seeing as future justices will be able to serve until their deaths or retirements, twice as long as their predecessors, politicians will be incentivized to play winner-takes all politics.

Something needs to change.

The executive and legislative branches have experienced considerable alterations. For example, the Electoral College’s original format of allocating electors produced a president, John Adams, and vice-president, Thomas Jefferson, from different parties in 1796! U.S. Senators were chosen by state legislators until the ratification of the 17th Amendment in 1913, which made them subject to elections. The president was limited to two terms by the 22nd Amendment in 1951.

The SCOTUS has not changed as much in our 200+ year history. In a nice little piece, Nat GEO contributor Amy McKeever points out that the number of SCOTUS justices was set at 9 in 1869 after fluctuating up and down and until 1911 justices had to circuit ride across the country. However, there no term limits on a position which increasingly wields disproportionate power across the U.S.

There are a variety of suggestions. The HBR argues to impose a term limit of 18 years and tie nominations to specific seats, staggering the court’s composition as done in the House and Senate.

If we don’t do something, then the apolitical branch will continue to be subject to the whims of partisan politics. As my political science Professor David Siemers wrote recently:

“Ruth Bader Ginsburg was as inspirational figure as the American polity has provided in the last several decades. She helped us move towards a more perfect union, one where the full potential and rights of half of our citizens are better realized. I think it was a good thing for the US to have her on the Court, yet I would easily sacrifice heroic decades-long service on the Court for a better method of transition, one less firmly in the hands of fate.”

Don’t hate the player, hate the game.

Let’s change the game!

Agree?