Split on Judge Jackson’s Supreme Court Confirmation Highlights Deepening Partisanship

Some lawmakers wonder if future high court nominees could be approved if president’s party doesn’t control Senate

By Lindsay Wise (WSJ)

Listen to article, Length 7 minutes

WASHINGTON—The Senate is poised to confirm Judge Ketanji Brown Jackson this week, in a historic vote that will elevate the first Black woman to the Supreme Court but also highlight just how partisan high-court nominations have become in recent years.

On Monday morning, the Senate Judiciary Committee is expected to deadlock on Judge Jackson’s nomination, with all 11 Democrats voting in favor and all 11 Republicans voting no. Later that day, Democrats are set to hold a vote on the floor to bring her nomination before the full Senate, despite the committee tie. A final confirmation vote, at a simple majority threshold in the Senate, could come as early as Thursday.

All 50 senators who caucus with the Democrats are expected to support Judge Jackson, joined by at least one Republican, Sen. Susan Collins of Maine. Judge Jackson would succeed retiring Justice Stephen Breyer, and her expected confirmation won’t change the 6-3 conservative-liberal balance of the court.

The meager Republican support for Judge Jackson continues a trend of declining bipartisan support for nominees over the past two decades. During Donald Trump’s presidency, only a handful of Democrats supported any of his three high-court nominees, following a series of contentious hearings. Lawmakers now question whether future picks could be confirmed if the Senate is held by a different party than the president.

Some Republicans who oppose Judge Jackson cite her sentencing record and her work defending Guantanamo Bay detainees as disqualifying. Others, including Sen. Ben Sasse of Nebraska, had high praise for her, but said disagreements with her judicial philosophy prevented them from supporting her. Some have yet to announce their stance.

Judge Ketanji Brown Jackson’s nomination to the Supreme Court moved forward with the conclusion of her confirmation hearing, which featured tense exchanges over her sentencing record and recognition of the historic nature of the proceedings. Photo: Jabin Botsford/Press Pool

After meeting with Judge Jackson last week, Sen. Kevin Cramer (R., N.D.) called her “intellectually, academically, and experientially qualified.” But he said in an interview Thursday that pressures from constituents and outside groups force senators to weigh a Supreme Court nominee’s ideology heavily. He hasn’t announced how he will vote.

The Senate may have entered an era “where the only way to confirm a Supreme Court nominee is the party of the president has to be in control of the Senate,” Mr. Cramer said. “And I’m pretty certain that the founders didn’t have that in mind.”

In an interview, Ms. Collins said recent confirmations show the process is broken. She said the reason, in part, is that senators of both parties have moved away from their constitutional assignment to evaluate a nominee’s experience and qualifications. Instead, they want the nominee’s ideology to mirror their own beliefs.

“The courts are not supposed to be a political institution,” Ms. Collins said. “They’re supposed to be above the fray. And it undermines the public’s credibility and belief in the courts when we see a political approach taken to nominees,” she said.

“I hope the fever breaks,” said Sen. Richard Blumenthal (D., Conn.), a member of the Senate Judiciary Committee, about the partisan polarization over high-court nominees. “I thought maybe this was it, because she was such a powerful nominee.”

Senate Minority Leader Mitch McConnell (R., Ky.), who blocked then-President Barack Obama’s nominee Merrick Garland to fill a vacancy on the court in 2016, said senators used to feel that they owed presidents deference in their picks, focusing more on the qualifications of a nominee rather than how that person might rule.

But “that’s no longer the view of most senators on either side of the aisle now, and that explains why there has been such narrow, heated confirmation processes,” Mr. McConnell said at a Punchbowl News event on Thursday. He declined to answer when asked what he would do in the event of a Supreme Court vacancy if Republicans win back the Senate majority while Mr. Biden is president.

Judge Jackson would fill the seat of Justice Breyer, who has said he intends to retire at the end of the term, which is expected to come in late June or early July. There’s no vacancy until he formally retires from the court and the president signs Judge Jackson’s commission, formally appointing her to the office.

A poll conducted March 1 to March 18 by Gallup found that 58% of Americans support Judge Jackson’s confirmation, with 30% opposed. Twelve percent had no opinion. Of those currently serving on the Supreme Court, only Chief Justice John Roberts, nominated by George W. Bush, scored a higher percentage in Gallup surveys, with 59% of Americans favoring his confirmation in 2005. There is no Gallup data for Justice Breyer.

Shrinking Bipartisan SupportRecent Supreme Court nominees have drawn little backing from the opposition party in the Senate.Confirmation votes for current justices.

In a deeply polarized Capitol, confirmations have become increasingly divisive in the years since Justice Breyer, nominated by President Bill Clinton, was confirmed 87-9 in 1994. Chief Justice Roberts was confirmed 78-22, with 22 Democrats and one independent voting yes. But subsequent justices got far less bipartisan support, and when most Democrats made clear they wouldn’t support Justice Neil Gorsuch in 2017, Senate Republicans lowered the threshold for advancing Supreme Court nominees to a simple majority, down from 60 votes previously.

In 2020, not a single Democrat voted for Amy Coney Barrett, then-President Trump’s pick to succeed liberal icon Ruth Bader Ginsburg, in protest over a process they said was rushed and too close to a presidential election. Justice Barrett was the first high court nominee since 1869 to be confirmed without any votes from a major minority party.