Supreme Court Confirmations and Political Polarization

The days of unanimous votes are long behind us.

WaPo’s Philip Bump does some interesting modeling that purports to show “The collapse of Supreme Court consensus.” In reality, it simply demonstrates, once again, the degree to which the parties are sorted and polarized. And, indeed, he acknowledges this:

Once upon a time, a Supreme Court nomination was largely noncontentious. The general approach of the Senate’s advise-and-consent mandate was that the primary determination of who should earn a seat on the bench was determined by voters in the most recent presidential election. Nominees were often simply confirmed on a voice vote, sent by the Senate to lifetime appointments across the street with little debate.

As you probably noticed, that is no longer the case. Not only are voice votes extinct, so are broadly bipartisan confirmation votes. The last Supreme Court nominee to have received more than 70 votes was Chief Justice John G. Roberts Jr., nearly 20 years ago. The six justices confirmed since have averaged less than 60 — and the last three were confirmed thanks to the 2017 decision to make Supreme Court nominations exempt from the filibuster.

What’s happened is what’s happened to American politics broadly: Bipartisanship has declined as partisanship has increased.

Regardless, the visualization of this phenomenon is stark. His setup:

We can visualize this. I took the 14 contested confirmations since the beginning of Ronald Reagan’s presidency and contrasted each senator’s vote on the nomination with his or her ideology score as measured by Voteview. Since we now expect members of the president’s own party to support his nominees and for members of the opposition to, well, oppose those nominees, I’ve highlighted those votes that went the other way: members of the president’s party who voted no and members of the opposition who voted yes.

The graphic:

There’s a whole lot more, including some deep dives into the ideological breakdown of the Senators over time. But what’s really interesting to me is the degree to which the trend isn’t a trend.

O’Connor sailed through in 1981. No surprise there. Not only were Senators reluctant to vote against the First Woman Justice but the parties were not at all sorted. Indeed, Reagan Democrats still dominated the Southern delegation and Northeastern “Rockefeller Republicans” were still very much a thing.

But Rehnquist, elevated to Chief, was pretty controversial in 1986. He was well-qualified and respected as a jurist but had a pretty clear voting record as an Associate Justice.

Then Scalia and Kennedy, not shown on the graphic, were confirmed via unanimous consent in 1986 and 1988, respectively. They were the last of that breed.

Bork was, well, Borked. But replaced easily by Kennedy after an intermediate appointee withdrew because he smoked pot as a professor.

Souter sailed through easily in 1990, well after Republicans started taking over the Southern delegation.

Thomas had to weather the Anita Hill scandal, so perhaps no surprise that Democratic support fell off.

But Ginsburg, Bryer, and Roberts all sailed through with broad opposition party support in 1993, 1994, and 2005.

Alito garnered very little Democrat support in 2006.

But Sotomayor and Kagan sailed through in 2009 and 2010. To be sure, not with the seem ease as they would have fifteen years earlier but, still, a tremendous amount of cross-party support despite much more sorted parties.

That the three Trump appointees got next to no Democratic support is hardly surprising. Not only was he polarizing but the seat that went to Gorsuch was held open by parliamentary hardball; Democrats, not unreasonably, believed that the seat was stolen from them. Kavanaugh had multiple sexual assault accusations. And Barrett was rammed through at the 11th hour to replace the most beloved Justice on the Court.

Honestly, the pattern here is not obvious. In at least three cases (Bork, Thomas, and Kavanaugh) the nominee was embroiled in scandal. The other two Trump appointees were tainted by controversies not of their own making.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, US Senate
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. KM says:

    The other two Trump appointees were tainted by controversies not of their own making.

    Eh, they’re not innocent in all this. Guilt by association and profiting off the illegal actions of others without a peep of protest is tacit consent to the bad behavior. Also, you don’t get anywhere with Trump unless you’re dirty or willing to look the other way. If they rose to the top, there’s a reason they came out as number one choice.

    Gorsuch was well aware of what went on to get him a seat and went along with it; he could have publicly denounced the stolen seat and acknowledged it was gained through tainted means. He would still have been seated but it might have gone some ways in redeeming the SC as “non-political”. Pointing out the basic fact that Congress played games with the balance of power would have been the least one would have expected a decent nominee to do.

    Barrett simply doesn’t belong there and she knows it. She’s not ready and her career and qualification wouldn’t have ranked her on the short list if she wasn’t willing to play ball. She’s unqualified by any standards but fundie political ones; she’s there to ram through conservative goals and its blatantly clear she was chosen despite lack of experience to do so. Who knows what she agreed to in a backroom deal to get the nomination?

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  2. gVOR08 says:

    Jackson seems to be utterly free of scandal (excess X chromosome and melanin aside). Hawley and the boys are having to really stretch to support any claim of extremism. There are predictions of what, six or so, GOP votes for her. Let’s hope we see a demonstration soon that wholly partisan votes are not a trend.

    And maybe someday a GOP prez will nominate someone who isn’t a Federalist Stepford judge.

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  3. Barry says:

    James: “Bork was, well, Borked. ”

    Bork was Nixon’s henchman, and should have done time.

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  4. There is little to be gained, as an opposition member of the Senate, in voting for the other party’s nominee. But there is the possible downside risk of it being used against you in a primary.

    I think this logic will increasingly dominate these votes.

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  5. Michael Reynolds says:

    @Steven L. Taylor:
    For a politician to vote in a way that even slightly endangers his future, that politician would have to believe that there are more important things in this world than their own personal advancement.

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  6. @Michael Reynolds: But consider: if I am an R and I think I want to do X, Y, or Z policy-wise that I assume are moral goods, I have to be re-elected. As such, if the nominee will be confirmed with 50 votes, what good am I doing myself or my constituents to add the 51st vote.

    Maybe I am a sane Republican who is hoping not to be replaced by a MAGAist.

    The behavior is logical.

    Put another way: the entire system assumes that politicians will seek re-election. This is not the main flaw in our system (indeed, it is how representative democracy is supposed to work). The main flaw in our system is that it isn’t very representative (in this case, for example, 2 Senators for Texas and 2 for Vermont is just out of balance).

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  7. Kathy says:

    @Steven L. Taylor:

    What usually really develops is a Catch-22. Senator X won’t vote for the other party’s proposal Y, because that might get them primaried, and then some Senator Z won’t vote for things like the other party’s proposal Y.

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  8. gVOR08 says:

    @Steven L. Taylor: All very true. But it used to be possible, even common, for a moderate GOP to win a primary. So I always have to ask what changed? Top of the head I’d say a radicalized GOP primary electorate and reduced advantage of incumbency. Admittedly oversimplifying, I’d lump a lot of the cause of radicalization under the heading of FOX “News”. And maybe the radicalization is a sufficient explanation for the reduced advantage of incumbency.

    I keep being reminded of reading that every two years Congressman H. W. Bush would go back to Houston and play RWNJ until the election, then go back to D. C. and do whatever he felt best for the country, seeing no particular connection between the two activities. And not being forced to see any connection.

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  9. drj says:

    @KM:

    She’s unqualified by any standards but fundie political ones

    The reality is that legal qualifications have nothing to do with being a SC justice. Bush v. Gore convincingly ended that pretense, I think.

    Looking at controversial rulings, would there be any difference in outcomes if Alito were replaced by Sarah Palin?

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  10. MarkedMan says:

    Like many here, I think this whole thing is entirely an outgrowth of polarization in general. And I think that is almost entirely due to the total domination of primaries in selecting candidates. No candidate needs to listen to party leadership in order to get elected, and even party leadership must please their primary voters, who are usually the most rabid and disconnected from reality.

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  11. MarkedMan says:

    @gVOR08:

    But it used to be possible, even common, for a moderate GOP to win a primary. So I always have to ask what changed?

    See my note above. It used to be that, more often than not, you needed party leadership’s endorsement to win a primary. Now they have little effect.

    The worst thing Bernie Sanders has done for the Democrats is make them get rid of the super-delegates. It was the one way to stop the looney-toons (see: Trump, Cruz, Green, Boebert) from taking over.

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  12. just nutha says:

    @Michael Reynolds: Sure. But that’s true to some greater or lesser degree of most people who are employed at the pleasure of some third party. Even as a lowly warehouse worker, there were times when I did something because the alternative was not working. There were times when I said “we won’t get away with this and this is why” but the why needed to be compelling for me to take the risk. Principle alone wouldn’t cut it.

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  13. Michael Reynolds says:

    @just nutha: @Steven L. Taylor:

    Sure. But that’s true to some greater or lesser degree of most people who are employed at the pleasure of some third party.

    I may be an outlier. I quit high school when a teacher insisted I had to come in through one door rather than another. I quit a waiting job when I was desperately broke because the manager insisted I push Mateus rosé, FFS. I rejected the opportunity to sell books in Germany because they wouldn’t let me have a lesbian character, and China because they wanted me to make politically-motivated changes. I quit writing YA entirely because I didn’t like the narrow parameters being enforced by the kidlit establishment, and I don’t take orders from anyone.

    A man afraid to risk isn’t much of a man in my old-fashioned macho opinion. I’ve had to eat very little shit in my life, and it’s not because I was born with a silver spoon in my mouth. Life requires at least a little courage.

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  14. Scott says:

    @Michael Reynolds: Or you have oppositional defiant disorder. P.S. That’s a joke, son.

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  15. just nutha says:

    @Michael Reynolds: Yes. You are an outlier. I became somewhat of an outlier when I moved from warehousing to teaching, but it took accepting that I was never going to have what is conventionally considered “a career” as a teacher (though I did work in the field with moderate success for about 25 years. Lots of people I know would not have been able to accept what my life has been (several have told me so) and would certainly not be able to be who you have been. Still, to ascribe that phenomenon to lack of courage seems misplaced (and a little mean spirited) to me.

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  16. just nutha says:

    @Michael Reynolds: “I’ve had to eat very little shit in my life, and it’s not because I was born with a silver spoon in my mouth.”

    The silver spoon is what enables people to declare “no it isn’t; it’s ice cream. Mmmmmm.”

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  17. Michael Reynolds says:

    @Scott:
    Oh, it’s not a joke, I absolutely do. I wrote a character named Armo in MONSTER, a big, dumb White boy with ODD. Self-parody which of course only I got. I added the autobiographical twist that while he cannot take orders from men, he’s quite a bit more flexible with women. When we get into discussions of adapting books for TV I always say I want the showrunner to be a woman, because women aren’t quite as into dick-measuring as men are. Men do love their hierarchies.

    @just nutha:
    I wasn’t directing that at you or anyone living a hard life. But Senators have enough standing, I would have thought, to be at least a tiny bit brave.

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  18. Flat Earth Luddite says:

    @Michael Reynolds:
    Yes, Michael, you are certainly an outlier, and are coming across as more than a bit mean-spirited. Come talk to me about moral courage to not take any shit from anyone when your family’s safety, housing, and ability to eat are dependent upon your willingness to smile and eat a shit sandwich. It’s easier for those with wealth and power to take that position.

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  19. Flat Earth Luddite says:

    But now that I’ve gone off topic, I’d like HL98 and any other lawyer-types here to give their feedback on this article:

    https://www.politico.com/news/magazine/2022/03/22/senate-confirmation-questions-ketanji-brown-jackson-00018982?utm_source=pocket&utm_medium=email&utm_campaign=pockethits

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  20. gVOR08 says:

    @Flat Earth Luddite: IANAL but Jackson would answer those 12 questions with exceptionally skilled and professionally smooth evasion. I’d love to see her use the occasion to educate the public on the role of the Federalist Society and the dishonesty of Originalism. But that would cost her the job, and getting the job is her only job right now.

    Example – POLITICO wants to ask what she can actually do as a 3-6 minority. Does anyone want her to answer honestly – that she’ll pray for Thomas to have the heart attack he’s working so hard for during the Biden administration and that Roberts has an occasional lapse into integrity.

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  21. Michael Reynolds says:

    @Flat Earth Luddite:
    First, wealthy and powerful is wild overstatement, and second, I was this way when I was as broke as it’s possible to be and with felony warrants chasing me. In fact I’d argue that part of the reason I have the nice house and the fancy car is because I wouldn’t eat shit. I made my bones in writing by telling editors that I knew better than they did.

    Look, I am not holding myself out as an example except with tongue buried deep in cheek. I’m well aware that I’ve been ridiculously lucky. But courage is a virtue and sometimes comes with its own reward. And I expect people who talk the talk to walk the walk. Every asshole in politics talks about integrity and courage and convictions. Maybe I’m naive but when someone tells me he’s brave I expect him to at least make an attempt to actually be brave. And the easy cynicism with which we accept cowardice means that cowardice has no down side. We should not simply shrug and accept every new proof of hypocrisy or pusillanimity. We should not normalize weakness.

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  22. Daryl and his brother Darryl says:

    Another post about polarization that shows it really took off with Newt Gingrich and Fox News coming into power in the mid-90’s and has only gotten worse.
    Lady G’s first question of Jackson today was about religion, in a Government that has no…well… let’s refer to the original language of the Constitution for the originalists in the crowd:

    “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    Have a nice day!

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  23. Michael Reynolds says:

    Most civilization is based on cowardice. It’s so easy to civilize by teaching cowardice. You water down the standards which would lead to bravery. You restrain the will. You regulate the appetites. You fence in the horizons. You make a law for every movement. You deny the existence of chaos. You teach even the children to breathe slowly. You tame.

    — Frank Herbert

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  24. Gustopher says:

    @Barry:

    Bork was Nixon’s henchman, and should have done time.

    IIRC, Bork’s actions were perfectly legal, just completely unethical.

    I do not know why anyone thought he should have been nominated, given the baggage that he came with. Were there no right wing lunatics who didn’t implement the Saturday Night Massacre?

    That should be career ending shit.

    Anyone who thinks Bork’s nomination was unfairly rejected loses a bit of respect from me — either they are ignorant, or stupid, or evil.

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  25. Gustopher says:

    @MarkedMan:

    The worst thing Bernie Sanders has done for the Democrats is make them get rid of the super-delegates. It was the one way to stop the looney-toons (see: Trump, Cruz, Green, Boebert) from taking over.

    But Bernie is the one of the Looney-Toons.

    We have a better quality of Looney-Tunes. The evil plan is to surround themselves with sycophants, and then try to give everyone universal health care.

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  26. Daryl and his brother Darryl says:

    What’s happened is what’s happened to American politics broadly: Bipartisanship has declined as partisanship has increased.

    And can be pinned almost directly to the rise of Gingrich and Fox, not just in terms of the SCOTUS, but more widely speaking.
    If Ukraine has shown us anything it’s that cancers like Putin need to be dealt with from the jump. You do not wait for cancer to become stage 4 before you treat it. Gingrich and Fox were allowed to become metastatic and today their politics threaten to kill Democracy.

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  27. Gustopher says:

    @drj:

    Looking at controversial rulings, would there be any difference in outcomes if Alito were replaced by Sarah Palin?

    No, but she would have a rhetorical flourish in her opinions that would make Scalia’s “argle bargle” and “pure applesauce” pale in comparison. So, that would be a good thing.

    I like my lunatics to be raving, rather than camouflaged.

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  28. just nutha says:

    @Michael Reynolds:

    .Every asshole in politics talks about integrity and courage and convictions.

    And every asshole in politics lies, too. But only when their lips move–usually about integrity, courage, and conviction.

    But I wouldn’t call you naive. Maybe overly optimistic, but not lacking in experience or judgement. (It may be a good thing that the list in the definition didn’t include self-awareness, though. On the other hand, how many of us, other than Robbie Burns that is, have that?)

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  29. just nutha says:

    @Gustopher: At the time. I thought that Bork was unfairly rejected. And I’ll go with “stupid.”

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  30. SKI says:

    Bork was, well, Borked.

    `
    People always forget that Bork got a vote on the merits and lost – including being rejected by more than 10% of the Republicans in the Senate. And he lost because of his legal beliefs being WAY outside the mainstream in ways that were/are abhorent. A reminder:

    Bork did not believe the Equal Protection Clause applied to women (who he claimed, in 2011, “aren’t discriminated against anymore”). He argued that vulgar or explicit art is not protected by the First Amendment, expressly advocating for aggressive censorship of movies, music, and the Internet. He believed that poll taxes and literacy tests for voters were constitutional, and handwaved away the poll tax at issue in Harper v. Virginia Board of Elections as “a very small tax.” He had ruled as a federal judge that an employer could force female employees to choose between being fired or being sterilized. He was aggressively homophobic, ultimately spending a sizable portion of his post-judicial career promoting a constitutional amendment to ban same-sex marriage.

    Bork was hounded on these topics at his confirmation hearing. When Wyoming Senator Alan Simpson, a Republican, tried to toss him a softball by asking why he wanted to be on the Supreme Court, Bork whiffed: he responded that it would be an “intellectual feast,” giving off the air of an aloof academic (not to mention outing himself as the kind of person who uses the term “intellectual feast”). By the end of the hearings, a majority of Americans opposed Bork’s appointment, and six Republicans would join the Democrats in voting against him.

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  31. gVOR08 says:

    Bork almost single-handedly destroyed anti-trust enforcement. I read his students referred to his anti-trust law class as pro-trust. Give thanks he never made it to the Supremes. Even in our age of relativistic truth there really should be some level of RW Looney Tuneism that’s beyond the pale.

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  32. Raoul says:

    There are so many examples of Bork being outside the judicial and cultural mainstream, his book Slouching Towards Gomorrah is quite telling. For example: do you know he thinks Supreme Court decisions should be allowed to be overturned by Congressional majorities? (To be fair, I think Jefferson believed the same).

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  33. Sleeping Dog says:

    @Raoul:

    Given the makeup of the current court, that idea has some merit.

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  34. Gustopher says:

    @Raoul: I think Bork would have had a better book career if he avoided things like “Slouching Towards Gomorrah” and went instead with “10 Awful Ideas That Are Horrifying Constitutional”. Would it have been a warning, or a playbook for evil? Depends on who picks up the book.

    Alan Derschowicz could have written an introduction, or at least a blurb on the cover.

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  35. JohnMcC says:

    Hard to discuss partisanship and the Supreme Court without mentioning Merrick Garland.

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  36. gVOR08 says:

    Caught a little bit of the hearing. Josh Hawley seems really obsessed with child porn.

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  37. al Ameda says:

    How far have we fallen? Well, in a not-so-long-ago-time Antonin Scalia was confirmed on a 98-0 vote and Ruth Ginsburg on a 96-3 vote. We know the reasons, but still…

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  38. Scott O says:

    @gVOR08: “So I always have to ask what changed?”

    Let me recommend this episode of the NPR show “This American Life” from 2017. Most of the show is about how an unknown beat Eric Cantor, House Minority Leader at the time, in the 2014 primary.

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  39. Ken_L says:

    I continue to believe Democrats made a strategic error in 2016 and compounded it in 2017. They seem to have concluded that because McConnell’s refusal to take up Merrick Garland’s nomination hadn’t shown up in polls as a big deal for voters, they shouldn’t make it a central issue in the campaign. Because everyone knew Trump was going to lose anyway haha! In fact it should have been a major element in Hillary’s campaign in an effort to persuade voters that it mattered very much.

    In 2017, they would have been well-advised to announce that they intended to refrain from considering any nominations to the Supreme Court until Merrick Garland had been seated. In other words boycott both committee hearings and a final confirmation vote. This would have served to keep McConnell’s original atrocious behavior front and center of the discussion of any future Supreme Court vacancy, relieved individual senators of the obligation to consider any of Trump’s nominations on their merits, and presented Republicans with a continuing headache in rebutting accusations that they had hopelessly politicized the Supreme Court.

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  40. dazedandconfused says:

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