What’s Left: The Hopeless Effort to Maintain a Non-Politicized Supreme Court Nomination Process

Whats Left: The Hopeless Effort to Maintain a Non-Politicized Supreme Court Nomination Process

Elli Ament, Contributing Writer

Justice Stephen Breyer, the most senior justice on the liberal wing of the Supreme Court, is stepping down at the end of this term, paving the way for a Democratic nominee before Democrats run the risk of losing their narrow Senate majority. While Breyer has remained staunch on the separation between the court and political considerations, according to ABC News, many will see his leaving during a Democrat majority as a political action under intense pressure from the Democratic Party. Certainly, whoever is nominated to replace him will be steeped in potential political gain. 

On his campaign trail, President Joe Biden promised to nominate the nation’s first Black female Supreme Court Justice. Biden’s official remarks while honoring Breyer’s retirement at the White House reaffirmed that promise. According to CNN, Biden’s decision to nominate a Black woman will play an integral role in shaping his legacy and history; hopefully enough so that it builds support for the Democratic Party moving into the midterms.

However, Biden’s specifications in a nominee have been met with blowback. A recent IPSOS poll released found that 76% of Americans want Biden to “consider all possible nominees,” and only 23% of those polled wanted Biden to “consider only nominees who are Black women, as he has pledged to do.” Mixed reactions from Republican senators have only further complicated the responses to Biden’s pledge. Senator Susan Collins said on ABC that Biden’s handling of the nominee has been “clumsy at best” whereas according to The Hill, Senator Tom Cotton has claimed that Republicans will keep an “open mind.” In the same article, Senate Minority Leader Mitch McConnell said that he would give Biden’s nominee a “fair look,” but warns Biden to not nominate someone from the “radical left.”

Biden’s pledge to nominate a Black female Supreme Court Justice is not the first time a president has made promises as to the qualifications of their nominee. As described in Politico, former President Ronald Reagan promised to nominate a woman, and he did: Sandra Day O’Connor. Former President Donald Trump similarly announced that he was going to fill Justice Ruth Bader Ginsburg’s seat with a woman. Using the court as a method to advertise diversity has both a historical record and an important purpose: inspiring young people and setting precedent for groups that have been historically and are currently discriminated against. Moreover, despite protests from whoever is in the minority at the time of the nomination process, nominees have been politicized  for a while now. 

As reported by Politico, the change in 2013 Senate rules spurred by Democrats frustrated over Republicans blocking President Barack Obama’s judicial nominees and then later enacted by Republicans with Justice Neil Gorsuch, judicial nominees no longer needed a super majority to be confirmed. In other words, only 50 votes, not 60, were required to confirm a judicial nominee. This change allows for nominees to be politicized because a party only needs a simple majority in order for their nominee to be confirmed, completely destroying the need for bipartisanship. Now, it is expected that senators will vote for those nominees from their own party and against those from the opposing party, regardless of qualifications. 

Certainly, this is not what is politically advertised. We can see this in senators’ public statements regarding the nomination process with who they are voted for. A million excuses will be made but it does not explain the staunch pattern in Supreme Court judicial nomination votes, according to the U.S. Supreme Court. Since the confirmation of Gorsuch, the first confirmation following the rule change, no more than two senators have voted for the opposing party’s nominee. Both parties act hypocritically when they are in the minority and criticize the opposing party for politicizing the nomination process. 

So what does this mean for the upcoming nomination?

It is likely nothing will change from the process of previous nominations. Biden will likely nominate a young, liberal Black woman who will be qualified for the position yet only receive votes from the left, requiring Vice President Kamala Harris to break the tie resulting in the first confirmation with only a single vote difference between yea and nay. A grim result in terms of what to expect from partisanship in future nominations.

Nevertheless, I have hope that Biden’s nominee will still do great things for the country. Certainly, Breyer’s shoes will be big ones to fill, but if confirmed, whoever the nominee is will be a hallmark of diversity with a permanent legacy on the court and have the opportunity to both balance the court and be influential in monumental decisions that will play out over the coming decades. I concur with Biden who, according to CNN, said that having a Black female justice is “long overdue.”

I would, however futile, issue a challenge to senators, both Republican and Democrat: stop hiding behind the often cowardly excuses you make to not vote for the opposing party’s nominees. Honestly evaluate nominees based on their qualifications, not simply whether or not you or your party agrees with them. Let us as a nation rebuke senseless and childish partisanship in favor of what is best for our country.