Supreme Court nomination hearings are awful. Here’s why

WASHINGTON —  The Senate has been holding public hearings on Supreme Court nominees for just over 100 years: With rare exceptions, they’ve been either stultifying or repulsive — few have told Americans much about how the nominees would wield the tremendous power they have once confirmed.

Nomination hearings have a long history, mostly ugly. The first for a high court pick was convened in 1919 by senators who hoped to block Louis Brandeis’ nomination, partly because of his suits against major corporations, partly because he was a Jew.

But the spectacle of preening senators browbeating a nominee, the “jackassery” of the Senate, as Sen. Ben Sasse (R-Neb.) put it Wednesday, was once confined only to the most controversial choices. Sadly, it has now become a routine endurance contest, a ritualized hazing for those who would sit on the nation’s highest court.

The hearings do have revelatory moments, but mostly about the inquisitors, not the nominees. They provide a concise guide to the political calculations of the day.

That was abundantly true of the hearing on Judge Ketanji Brown Jackson, which wrapped up Thursday. The lengthy sessions didn’t tell Americans much about what a Justice Jackson might do. They don’t appear to have swayed any votes in the Senate.

But they did say a lot about which issues Republicans believe will motivate their voters in this year’s elections, and they underscored how wholly partisan confirmations, once a rarity, have become the Senate’s norm.

The new partisan normal

Barring some last-minute surprise, Jackson will come up for a committee vote April 4; key Republicans have made clear they do not plan to block her. That would put her on track to win confirmation in April, either on a strict party-line vote or with one or two Republicans siding with the Senate’s Democrats. There’s been no evidence so far of any Democrats planning to vote no or even much of a Republican effort to woo them.

An extremely close vote is exactly what was predicted before the hearings took place. It would continue the pattern of President Trump‘s three nominees, Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, who won confirmation with 54, 50 and 52 votes, respectively.

President Obama‘s nominees, Sonia Sotomayor and Elena Kagan, won somewhat larger majorities, 68 votes in Sotomayor’s case, 63 for Kagan, but the difference mostly reflects the large Senate majority the Democrats enjoyed in Obama’s first two years.

So assuming Jackson wins confirmation, as seems likely, she’ll end up being the sixth high court nominee in a row to be confirmed almost wholly along party lines.

That reflects a big, and fairly recent, change in U.S. politics.

In 2005, for example, President George W. Bush‘s choice for chief justice, then-Judge John G. Roberts Jr., won confirmation 78-22. A little over a decade earlier, President Clinton‘s nomination of Stephen G. Breyer drew 87 votes, and Ruth Bader Ginsburg won 96.

Although there have always been controversial nominees — those clouded by allegations of misconduct, like Justice Clarence Thomas, who narrowly won confirmation in 1991, or those who generated huge ideological fights, like Judge Robert Bork, who lost in 1987 — they were the exceptions.

Lopsided votes on Supreme Court nominees were the norm for most of U.S. history, as Princeton political scientist Jonathan Kastellec has shown with data on all the Senate’s votes on high court picks going back to the first, in 1789.

But easy votes disappeared after the late 1990s; since Ginsburg, no nominee has gotten 90.

The reason is not hard to discern: As Americans have grown more deeply partisan, they’ve stopped thinking about Supreme Court nominees as nonpolitical figures.

In Ginsburg’s case, for example, more than 90% of Democrats who had an opinion supported her, but so did 70% of Republicans. That doesn’t happen anymore — voters from the president’s party now reflexively support his nominees, while those from the other party oppose them. And senators mostly follow the will of voters in their party, even when that differs from the average voter in their state, Kastellec and his colleagues found.

Jackson’s supporters have been happy to repeat Gallup’s finding that, along with Roberts, she has the highest level of support for any nominee since the 1980s, 58%. But she also has a relatively high level of opposition, 30%.

What she doesn’t have is a lot of anonymity — only 12% in Gallup’s survey said they didn’t know enough about her to have an opinion. By contrast, 44% of Americans said they had no opinion of Bork shortly before his hearings began, despite two months of mounting controversy over President Reagan‘s nomination.

As has been true of all the nominees in recent years, opinions of Jackson divide sharply along partisan lines, especially among those who are paying attention to the debate. Among people who said they had heard a lot about the nomination, Democrats supported her 93% to 4%, but Republicans opposed her 58% to 28%, the Pew Research Center found.

That partisan divide means that Republicans, especially those on the Judiciary Committee, have no political incentive to support Jackson — or likely any Biden nominee, despite Sen. Lindsey Graham‘s praise for Judge J. Michelle Childs from his home state of South Carolina.

The incentives for opposition run especially strong for Republicans who think they might run for their party’s presidential nomination one day, like Sen. Josh Hawley of Missouri.

Hawley’s aggressive criticism of how Jackson sentenced people convicted of possessing child pornography had almost nothing to do with her potential duties on the Supreme Court: The court doesn’t conduct criminal trials and only occasionally reviews sentences. But it connected directly to a major Republican campaign theme — portraying Democrats as soft on crime and also, as White House spokespeople noted, echoed a QAnon obsession with allegations of pedophilia.

Crime ranks as one of the top issues for Republican voters, with two-thirds of them saying that violent crime was a very important issue in deciding how to vote in this fall’s midterm elections, according to a survey that Pew released Thursday. (The survey overall found voters very closely split on which party should control Congress, but with Republican voters more likely to say that partisan control “really matters.”)

The questioning by Sen. Ted Cruz (R-Texas), who made an issue of books by Black authors like Ibram X. Kendi being taught at the tony private school on whose board Jackson sits, had even less to do with the court’s work. At one point, he asked if Jackson believed “babies are racist.”

Cruz’s questions connected to two other themes that motivate many Republican voters — racial resentment and anger at liberal elites.

The questions from Cruz, a Harvard Law School classmate of Jackson’s, dovetailed with a meme produced by the Republican National Committee on which the nominee’s picture was shown next to the letters KBJ, which were crossed out and replaced with CRT, for critical race theory. Both efforts bluntly tapped into the large segment of Republican voters who feel that discrimination against Black Americans no longer exists and that it is white people who are disadvantaged.

Democrats, of course, use their own hot-button issues in confirmation fights — questions about abortion rights and the Affordable Care Act filled Barrett’s hearing. Those issues, however, at least related to cases.

Republicans, however, have largely run out of issues they fear losing at the court, where a 6-3 majority sits solidly on their side. For them, confirmation fights have become just another front in Washington’s seemingly endless culture wars. With that, a bad process has gotten notably worse.

Covering the Jackson hearings

For weeks, Black women supporting Jackson’s nomination awaited her hearing with a mix of excitement and dread. By the third day, Arit John reported, many Black female lawyers and scholars said some of their fears had been realized. “This is just a master class in how Black women have to be patient — have to be fully composed in responding to things that are meant for destruction,” said Nadia Brown, chair of the women’s and gender studies program at Georgetown.

Jackson wrapped up her Senate testimony Wednesday, portraying herself as a well-grounded, mainstream judge who will be guided by the law and precedent, not ideology. As David Savage and Nolan McCaskill wrote, she emerged from the Senate Judiciary Committee hearing with no surprises or missteps that might endanger her path to confirmation.

United States of California

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Farmers and their business partners in California and beyond are able to make millions diverting methane from manure into machinery that processes and pumps it into natural gas pipelines. But some critics warn of too much of a good thing: The booming market for biofuel could end up providing incentives to produce even more manure — and more methane — than necessary.

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