Polarized Nominations: Perception of the Twenty-First Century Supreme Court 

John Hight

Garnering immense public interest, the United States Supreme Court has gained several new additions since the turn of the century; out of the current nine justices on the court, eight were appointed by twenty-first-century presidents. Justice Clarence Thomas is the only remaining justice appointed before 2000. A burgeoning trend toward highly partisan Senate confirmation votes appeared throughout the appointment processes of the eight newest justices on the court. In addition to these divided vote counts, the length of confirmation hearings also substantially increased. This new style of Supreme Court confirmations profoundly impacts the court’s public perception, as substantiated by the remarks made by Supreme Court justices themselves. 

The confirmation vote counts of the three most recent Supreme Court appointees, compared to their predecessors, show the stark change. Justice Ketanji Brown Jackson was appointed in 2022 with a vote of 53-47; she replaced Justice Stephen Breyer, who was confirmed in 1994 with a vote of 87-9. Justice Amy Coney Barret was appointed in 2020 with a vote of 52-48; she replaced Justice Ruth Bader Ginsburg, who was confirmed in 1993 with a vote of 96-3. Justice Brett Kavanaugh was appointed in 2018 with a razor-edge vote of 50-48; he replaced Justice Anthony Kennedy, who was confirmed in 1987 with a unanimous vote of 97-0. While all three of the most recent Supreme Court appointees were voted in by a single-digit margin, all three of their predecessors were only opposed by a single-digit vote count. To explore the reasoning for such a change, various factors are worthy of consideration.

Foremost, the appointment process prescribed by the Constitution is political in nature. Under Article II, Section two, the president “with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.” As a result, a potential Supreme Court justice must first align with the president’s judicial philosophy, or at least sufficiently enough to be selected. From there, their fate is left up to a partisan body of senators. As evidenced by Federalist 76, the framers intended this to be a check and balance on all three branches of government. In  Federalist 76, the Senate’s role in confirmations is described such that “the necessity of their concurrence would have a powerful, though, in general, a silent operation.” Further, it explains that this process “would be an excellent check upon a spirit of favoritism in the President” and “an efficacious source of stability in the administration.” However, the nature of this process changed with the adoption of the 17th Amendment in 1913. Senators are now directly elected by the people of their state, but before this amendment, they were appointed by their respective state legislatures. Consequently, senators are now tasked with election and re-election through popular vote, so they are held more directly accountable to the will of the people. 

In a politically polarized era such as the twenty-first century, it is understandable that the Senate, while concerned with re-election and popularity within their state, is more divided in the Supreme Court confirmation process. The polarization of society continues to increase, with Pew Research Center reporting that “in each party, the share with a highly negative view of the opposing party has more than doubled since 1994.” In their polling research, they also found that “most of these intense partisans believe the opposing party’s policies ‘are so misguided that they threaten the nation’s well-being.’” New public sentiment has carried over to the confirmation process, made evident by the votes mentioned above.

Another potential cause for these increasingly polarized nominations is the presidency itself. The four presidents of the twenty-first century, including George Bush, Barack Obama, Donald Trump, and Joe Biden, each impacted the Supreme Court. While various factors play a role in the confirmation process, the data shows that confirmations under Presidents Bush and Obama were by much larger margins than Presidents Trump and Biden. The following data table, based on statistics provided by the Senate, illustrates that trend: 

Based on political rhetoric from both parties, the Senate confirmation process is a potential method for voicing opposition to the president. Two tactics are used by senators to express opposition against a political stance or judicial philosophy: a nay vote against a nominee and pointed political questions. The length of confirmation hearings is a telling detail in this regard. According to Pew Research Center, from 1789 to 1953, the length of an average confirmation process was 13.2 days but from 1953 to the present, the average has more than quadrupled in time to 54.4 days. Turning the hearings into a media spectacle over an extended period gives politicians, of any ideology, more breadth to advance controversial topics, yet prospective justices often cannot comment on these subjects due to potential political conflicts. This not only takes up valuable time but also puts nominees in a difficult position, causing controversy before they enter the court. During the confirmation hearing of Justice Kavanaugh, Senator Susan Collins of Maine addressed this issue in a statement justifying her vote; she explained that “we have come to the conclusion of a confirmation process that has become so dysfunctional it looks more like a caricature of a gutter-level political campaign than a solemn occasion.” She further notes “in our intense focus on our differences, we have forgotten the common values that bind us together as Americans.” Consequently, the court’s legitimacy is at an important juncture, which some may argue hinges on the confirmation process. 

In Federalist 78, Alexander Hamilton wrote that the court was the weakest of all three branches because it could not successfully infringe upon either the legislature or the executive. However, he did not mention the ability of the legislature or the executive to act against the court’s interests. With a Gallup Poll pegging approval ratings of the Supreme Court at historic lows, Justice Kagan explained that “the way the court retains its legitimacy and fosters public confidence is by acting like a court…by not behaving as though we are just people with individual political or policy or social preferences.” Such a high level of integrity is intrinsic to the prestige of the Supreme Court, yet Senate confirmation hearings often set a different tone, as described by Senator Collins. The future of the Supreme Court is ultimately left up to the presidents and senators tasked with guiding our nation forward. The data of recent confirmations is not necessarily indicative of what’s to come, but its effect on public perception of the court is evident through polling. Even Chief Justice Roberts expressed concerns about the court’s authority and reputation by saying, “If the court doesn’t retain its legitimate function of interpreting the constitution, I’m not sure who would take up that mantle.” He further explained, “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about the appropriate decision.” Despite the highly partisan trend of nominations and their effect, there is always room for improvement; after all, the Constitution’s central objective is to strive for “a more perfect union.”