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Truly Bipartisan Supreme Court Confirmations Are Dead

Yes, Judge Ketanji Brown Jackson will get some GOP votes. But don’t expect either party to confirm a nomination from the other when they’re in the majority.

Drew Angerer/Getty Images
Judge Ketanji Brown Jackson and Senator Susan Collins

Barring some unforeseen catastrophe, Judge Ketanji Brown Jackson will be confirmed to the Supreme Court this week. Her confirmation was all but assured Tuesday, when Senator Susan Collins announced her support for Jackson—with perennial Democratic waverer Joe Manchin already on board, even the arguably more mercurial Kyrsten Sinema couldn’t sink Jackson. Collins’s endorsement may not have mattered: A Supreme Court justice confirmed with 50 votes has the same powers as any other justice. But Collins’s endorsement—along with, earlier this week, that of her fellow Republican Senators Mitt Romney and Lisa Murkowski—also gave Jackson’s pending appointment an added dose of credibility, particularly with the Beltway press, because it ensured a bipartisan confirmation.

In a sense, however, they are the exceptions who prove the new rule of Supreme Court politics: Meaningful bipartisanship is dead, a relic of a vanished era. Sure, a nominee might draw a vote or two from the other party, but when different parties control the White House and the Senate, the new rule will be partisan gridlock and empty court seats. When Clarence Thomas, the longest-serving member of the high court, was confirmed with a 52–48 vote after being credibly accused of sexual harassment by Anita Hill, such a narrow vote was a rarity; now, it is the norm. (Thomas, for what it’s worth, received 11 Democratic votes.)

You can see it in the statements and actions of Collins, Romney, and Murkowski’s GOP colleagues. They agree that Jackson has the qualifications and experience necessary for the highest court. But they cited a host of increasingly insane justifications in promising to vote against her, from QAnon dog whistles about her being pro-pedophilia to objecting, in Tom Cotton’s case, to the very existence of defense attorneys.

Nowhere is this new reality clearer than in the response to a recent statement from South Carolina Republican Senator Lindsey Graham. On Monday, Graham admitted that Jackson would “not have even been before [the Senate Judiciary Committee]” had Republicans been in charge of the chamber. Many treated it as a classic case of saying the quiet part loud. Republicans had, after all, refused to grant Merrick Garland a hearing in 2016, under the invented precedent that Supreme Court vacancies should be left open during election years. (Garland was nominated eight months before the presidential election; four years later, Republicans confirmed Amy Coney Barrett to the highest court eight days before the election.)

Graham spent most of Jackson’s hearings seething over Jackson being selected over his fellow South Carolinian, Michelle Chiles. He was, moreover, attempting to make a similar point to many of his Republican colleagues: The problem with Jackson wasn’t that she was a Democrat per se, they argued, but that she was simply too radical. “If we get back the Senate, and we’re in charge of this body, and there’s judicial openings, we will talk to our colleagues on the other side,” Graham said at a Senate Judiciary Committee hearing. “But if we were in charge, she would not have been before this committee.” He added: “You would’ve had somebody more moderate than this.”

And yet Graham was also speaking truthfully. Yes, a handful of votes from the opposite party may be the norm for the foreseeable future—even Brett Kavanaugh got one Democratic vote, from Manchin. For Republicans, who increasingly indulge in fantastical accusations of being soft on child molestation, any Democratic nominee is going to be too radical. Senate Republican Leader Mitch McConnell may have blocked Garland on the basis of an invented precedent, but he was really creating his own: Republicans will concoct any justification out of thin air to prevent advancing Democratic nominations. For Garland, it was being nominated hundreds of days before a presidential election; for Jackson, it would have been that she was “too radical”—though, then again, so would any other nominee brought by President Biden. Her judicial philosophy did not prevent Graham, for example, from voting to confirm her to the U.S. District Court just last year. Graham may have personally supported Chiles, but his fellow Republicans would gleefully block her from ascending to the bench, if granted the opportunity.

Republicans are pioneers in this regard—and there is every reason to believe that they will remain radical and uninterested in compromise. But it’s also just as unlikely that a Republican nominee would advance if the situations were reversed. Some of this is for political reasons: The Democratic base would revolt if senators in the party had the option to block the nomination of a lifetime appointment to the Supreme Court and failed to do so. But it would likely be principled as well. Recent Republican appointments to the court, from Samuel Alito to Kavanaugh and Amy Coney Barrett are political radicals who have pushed the court dramatically rightward.

Nevertheless, the longing for bipartisanship will continue to dominate much of our political discourse, both from the press and from politicians themselves. But Graham was speaking the truth when he admitted that the Judiciary Committee would not have advanced Jackson were she nominated when they were in the majority. Every once in a blue moon, we may get something like the watered-down $1 billion bipartisan infrastructure bill that passed the Senate with 19 GOP votes—a bill that does a little, but not nearly enough, to fix the country’s woeful roads and bridges, among other things. But the opposite party voting to advance a Supreme Court nomination? It’s far from likely.