April 8, 2022 | OPINION | By Karly Hamilton | Illustration by Kira Schulist
In 2016, Senate Republican Leader Mitch McConnell blocked President Barack Obama’s Supreme Court Nominee, Merrick Garland, for 10 months, claiming it was too close to an election to confirm a new justice. Fast forward four years, and McConnell rushed Amy Coney Barrett through the process mere weeks before the 2020 Presidential Election. How did such a drastic change occur in such a short time, and how is this change representative of greater political polarization in our country?
An NBC News article quotes U.S. Senator Chris Murphy of Connecticut reflecting on the 2016 Garland fiasco as the “point of no return”. Murphy explains that McConnell’s choice not to give Garland a hearing politicized the confirmation process further and goes on to explain how Republicans made it clear that they have no interest in confirming a Democratic nominee to the Supreme Court.
Another point of tension comes from Justices Clarence Thomas and Brett Kavanaugh. Both men were accused of sexual misconduct prior to being appointed to the Court. These confirmation hearings sparked intense debate, and while some Republicans claim that the justices were unfairly smeared, the Democrats are adamant that the hearings were heated due to the claims of misconduct—not political affiliation.
Supreme Court nominations haven’t always been as contentious. Antonin Scalia was confirmed 98:0 in 1986, and Ruth Bader Ginsburg was confirmed with a vote of 96:3 in 1993. These justices show that confirmations can—and should—be seen as an opportunity to appoint the individual best suited to the job, regardless of political affiliation.
As our country navigates the nomination of Ketanji Brown Jackson to the Supreme Court, we are faced with yet another complicated confirmation process. In 2021, she was confirmed to the U.S. Court of Appeals for the D.C. Circuit with the support of 3 Republicans.
Jackson did not receive support from leadership in both parties after her nomination to the Supreme Court. In fact, McConnell encouraged Republicans to vote against her confirmation. Jackson received the support of Democrats and just 3 Republican senators: Susan Collins, Mitt Romney, and Lisa Murkowski. These numbers still pale in comparison to past confirmation hearings.
The past has shown that it is possible for both parties to unanimously agree on a candidate. While it is unrealistic to think that there will always be perfect agreement, this demonstrates that common ground can be found.
When researching past successful Supreme Court nominees, I started to wonder how the ratio of votes in favor of the candidate compared to the number of senators that shared a party affiliation with the individual in question. Below is a scatterplot that shows this relationship over the past 50 years, with information sourced from the United States Senate Supreme Court Nominations webpage and Party Division webpage.
Within the scatterplot, points that fall higher on the vertical axis represent nominees who had a high ratio of votes in their favor relative to senators that shared their party affiliation. Highest in this category was John Paul Stephens, who was confirmed with 98 votes but only 37 senators of the same party affiliation. In other words, 61 senators of a different party voted for Stephens’ approval.
This plot shows a decrease in this ratio over the years, meaning that the gap between number of votes and senators of the same party as the nominee has decreased. While some of this is due to fluctuation in division of the senate, another factor is increased political polarization—which presents as votes being divided close to the party lines.
This scatterplot is not representative of what politics should be, especially when it comes to the country’s highest court. History has shown that unanimous votes can be achieved, and even if that will not always be the case, there is room for developing a more bipartisan approach to leadership.
Justice Jackson’s confirmation this Thursday was by a slim margin of 53-47, and while it remains historic, it also demonstrates the polarization of our current political climate. The question then becomes, are we beyond the point of no return?