With Ketanji Brown Jackson, the most experienced Supreme Court nominee in decades, about to be confirmed on a largely party line vote, Republicans are blaming Democrats for politicizing the High Court. They need to look in the mirror.
Despite the protests of a number of justices, liberals as well as conservatives, many Americans believe the Supreme Court is increasingly political.
While both sides have contributed to this sentiment, the burden of blame over the past two decades rests with Republicans.
The latest example is Justice Clarence Thomas’ wife Ginni’s private text messages to President Trump’s chief of staff after the 2020 election, spinning the loony conspiracy theory that the election was “stolen.” Calling it the “greatest heist in our history,” Ginni Thomas told Mark Meadows it was time to “release the Kraken.”
An unhinged spouse of a Supreme Court Justice isn’t a public matter, except that she referred in the texts to her “best friend,” a term the Thomases apparently use to describe their relationship. Justice Thomas was the sole vote on the Court siding with Trump in his attempt to keep his records on efforts to overturn the election from the congressional committee investigating the Jan. 6 mob assault on the Capitol.
With the lack of Supreme Court ethics or legal rules for its members, Thomas won’t be forced to recuse himself from these political matters, much less be forced to resign.
This only reinforces the politicization of the Court.
Senate Republican leader Mitch McConnell (R-Ky.) rationalized his predictable vote against Judge Jackson because she refused to take a position on changing the size of the Court, or “packing it,” as McConnell says.
The prospect of court packing is bogus. President Biden, merely for show, tapped a bipartisan study commission chaired by his campaign lawyer. It did not call for expanding the court.
It actually was McConnell who changed the size of the Court for almost a year — from nine to eight — when, as then majority leader, he refused to even allow a vote on President Obama’s nominee, Merrick Garland, to fill a vacancy. Republicans insisted it was protocol not to approve a Supreme Court nominee in a presidential election year. In 1988 a Democratic-controlled Senate approved a Republican nominee, Anthony Kennedy, for the High Court.
Then, in 2020 McConnell rushed through Donald Trump’s nomination of Amy Comey Barrett, approved on a partisan vote eight days before the presidential election.
The following year, showing her appreciation, Justice Barrett went to a McConnell event to insist justices aren’t “partisan hacks.”
This distinctly different treatment of nominees — based on party — doesn’t pass any non-political smell test.
Sen. Lindsey Graham (R-S.C.) blamed the poisonous environment on the Democrats’ treatment of Trump’s nominee Brett Kavanaugh in 2018 and promised there would be no personal attacks on Brown Jackson — then he asked about Jackson’s faith, and with other GOP Judiciary Committee members, proceeded to depict this moderately liberal and respected jurist as a criminal-coddling, pedophile-pampering, racial radical. She even was asked to define what’s a woman.
On a higher note, Sen. Ben Sasse (R-Neb.) said the politicization of the Court all began in 1987 when Democrats attacked Republican nominee Robert Bork.
He’s off on his history.
In 1970 Republican congressmen, led by then Rep. Gerald Ford, sought to impeach Supreme Court Justice William O. Douglas. At the same time Democrats rejected a Richard Nixon nominee, Clement Haynsworth, and the president then tapped an abominable choice, J. Harrold Carswell. He too was rejected.
Moreover Bork, highly intelligent and highly right-wing, was defeated decisively with opposition from southern conservative Democrats like Alabama’s Howell Heflin and Louisiana’s John Breaux, who worried the nominee’s racial views threatened to rekindle old wounds. Bork’s nomination also was opposed by a half dozen Republicans, including Virginia’s John Warner, one of the most respected and nonpartisan members in the Senate.
More than Bork — or any other episode — the politicization of the Court flows to 2000 when the Republican justices stopped a recount of Florida’s vote in the presidential election, handing the presidency to George W. Bush, who had lost the popular vote. Later one of the five-member majority, Justice Sandra Day O’Connor, expressed regret over that political decision.
The Bush v. Gore outcome paved the way for two more 5-to-4 partisan decisions with political ramifications: the 2010 Citizens United case, which opened the special interest money spigots in federal campaigns, and three years later, the Shelby County decision, which facilitated some Southern states enacting voting restrictions, especially aimed at minorities, with little federal oversight.
McConnell, Graham and company are right: the Supreme Court has become a political football — and they have been among the leading quarterbacks.
Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for The Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.