A Now Useless Process: The Nomination Of A Supreme Court Justice
How changing the rules by then-Senate Majority Leader Harry Reid led the current Senate Majority leader Mitch McConnell to get away with his “court-packing” agenda today.
When our founding fathers gathered to write the Constitution in Philadelphia at the now-famous Independence Hall in 1787, they envisioned a government that had three branches with each being a check and balance on the other. One of these branches was the Supreme Court of the United States with whom members would be nominated by the President and confirmed on the advice and consent of the Senate. This process has ensured that the Supreme Court remained a nonpolitical branch of the United States federal government, intervening to decide the constitutionality and legality of state and federal statues as cases were brought before the court. In recent years, this nonpartisan nature has been diminished with rule changes and politicization of the nomination process.
In April 2017, Senate Majority Leader Mitch McConnell decided that the Senate rules would be changed in order to end the debate over Supreme Court nominee Judge Neil Gorsuch. Changing the rules lowered the number of votes required to confirm a justice from the 3/5 majority needed (60 votes in the Senate) to just a simple majority of 51. In the final vote of now Justice Gorsuch, the Senate confirmed him with a 54–45 vote which included all members of the Republican party present and Democrats Joe Manchin, Heidi Heitkamp, and Joe Donnelly. Since then, this “nuclear option” has been used to confirm Trump nominee Judge Brett Kavanaugh in late 2018. Now Republicans wish to use the same tactic to confirm President Trump’s third Supreme Court nominee Judge Amy Conney Barrett with just 20 days left before the 2020 Presidential Election is set to take place. What does this mean for our democratic norms and processes? Well, it doesn’t look too good.
Judge Barrett has been told that she is all but confirmed to the Supreme Court and that she essentially just needs to sit back and smile for the cameras during her confirmation hearings until an official vote can be taken on the floor of the United States Senate later this month or early November before election day. Both Republican and Democratic Senators have asked Judge Barrett several questions which she has decided to either give vague answers or completely dodge the questions relating to cases set to come before the court soon including abortion rights, 2nd amendment gun rights, LGBTQ+ issues, and a potential decision by the Supreme Court if either candidate in the 2020 race contests the election.
This stonewalling by Judge Barrett, and majority rule in the Senate, has led our norms and institutions to appear to have been diminished in not just prestige but in power as well. The once “greatest deliberative body in the world” now conducts a majority of its work based on simple majorities and when one party doesn’t want to work with the other, they just hope they win the majority in the next election to push their own agendas. Leader McConnell is not to blame solely for this erosion of democratic norms. Then Leader Harry Reid in 2013 implemented the nuclear option when it came to executive branch appointees and judicial nominations in the lower courts. This is what is seen to have opened the door to Leader McConnell continuing to change the rules to a simple majority for appeals court judges and finally Supreme Court justices with the approval of Neil Gorsuch in 2017. The process of nominating and confirming judicial appointments throughout the courts and the executive branch has become nothing more than a vanity show in which the majority party can show off their appointment before putting them on the bench for a lifetime appointment.