The “broken” Supreme Court confirmation process

Ketanji Brown Jackson

Now that Susan Collins, the moderate Republican from Maine, has announced that she’ll vote to confirm Ketanji Brown Jackson, it looks like her Supreme Court appointment is assured.  Spoil-sport Kyrsten Sinema is still sitting on the fence.  But it doesn’t matter because Jackson has 50 senators in her corner, enough to put her over the top with Vice President Kamala Harris casting the tie-breaking vote.

Not that it matters, though.  Jackson will be replacing liberal Stephen Breyer, who is stepping down after 27 years.  So despite her appointment, the court’s conservative majority will remain unchanged at 6-3.  Thanks to modern medicine, the two oldest conservatives, Clarence Thomas and Sam Alito, both 73, will likely go on handing down decisions for another decade or more, which means that the Supreme Court’s conservative dictatorship could continue well into the mid-2030s.  Jackson doesn’t change that a bit.

But the nomination does matter in one respect, i.e. what it says about the process.  The verdict is not good.  The New York Times says that “Republican manhandling” of the nominee, behavior that included asking about her religion, her racial views, allegations that she’s soft on child porn, etc., shows that the “confirmation process is irredeemably broken.”  “Broken” is also the word that Bloomberg News used to describe the Amy Coney Barrett confirmation process in 2020 and how ABC News described the tumultuous Brett Kavanaugh hearings two years earlier.  

So broken it is.  But this leads to the big question: why, precisely, has the confirmation process plunged to such abysmal depths?  For the pro-Democratic press, which includes just about everyone except for Fox News, the answer is easy: Republicans have taken a deep dive into racial backlash and QAnon freakdom, and their ridiculous questioning concerning Jackson’s views on Critical Race Theory and kiddie porn shows it.  And they’re right – except that Dems went equally bonkers over Kavanaugh and Barrett.  (See “The Great Kavanaugh Freakout” below.)  Either both parties have gone crazy at the exact same moment or something deeper is going on.

Needless to say, it’s the latter.

Basically, the real issue at hand is one of meaning and interpretation.  You don’t have to labor through William Empson’s Seven Types of Ambiguity to know that meaning is problematic and that clarity only emerges as part of an on-going dialectical struggle.  Anyone who’s married knows how it goes.  “But that’s not what I meant,” one spouse will say, whereupon the other will reply, “Then what did you mean?”  Only after an extended give-and-take does the answer begin to come out.

The concept of a living Constitution, that old liberal mainstay, assumes something similar, i.e. collective engagement by the courts, the people, Congress, etc. in the process of figuring out what it says about any given topic.  Because the document has so many layers of meaning, only the constitutional system as a whole, with all its various institutions and organs, is capable of sorting it all out.  But the concept opens itself up to attack from conservatives who invariably complain that the purpose of endless chatter about penumbras and emanations is to cover up for the fact that liberals are torturing the text to make it say what they want.  What’s the point of a Constitution if Democrats get to change its meaning at will?

Hence the great conservative backlash of the 1980s.  The battle began with Ronald Reagan’s nomination of Robert Bork in 1987.  Bork’s position was as plain as the text he proposed to explicate.  Liberal jurists, he said, should adhere to the clear meaning of the Constitution, and if they don’t like what it says, then they should avail themselves of the amending clause in Article V to change it.  Interpretation was to be reined in. But Bork was more than a bit disingenuous since, as he well knew, the amending clause is so dysfunctional that it allows impossibly small minorities – as little as 4.4 percent according to the latest census figures – to block even the most modest constitutional reforms.  This is why Americans are forever agonizing about the Second Amendment: because an infinitesimal number of rural Americans are determined to veto any textual emendation aimed at clearing it up and they have the power under the Constitution to make their views stick.

Bork’s modest proposal would thus cripple liberals for decades to come. Their only option, therefore, was to up the rhetoric to the highest possible level.  Declared Teddy Kennedy in a nationwide TV address:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

Wow!  NAACP executive director Benjamin Hooks added of the Bork nomination: “We will fight it all the way – until hell freezes over, and then we’ll skate across on the ice.”

Liberals cheered and cheered.  But what no one had the guts or the analytical ability to point out is that Bork was not the problem – the amending clause was.  The more difficult the clause, the more frozen the constitutional structure and hence the greater the dependency of liberals on the miracle of interpretation to break through the ice.  

Since Congress was by this point dysfunctional as well, the Supreme Court rose in importance and the battles over each new nominee grew more and more vicious.  Kavanaugh – whom the liberal Yale law prof Akhil Reed Amar said “commands wide and deep respect among scholars, lawyers, and jurists” – ran into a MeToo wave of hysteria thanks to the dubious testimony of Christine Blasey Ford.  Amy Coney Barrett ran into religious bigotry on the part of Dianne Feinstein – “The dogma lives loudly within you,” the California Democrat memorably declared – while Jackson ran into racism on the part of Ted Cruz.

Each side is more disgraceful than the other.  But it’s not their fault, at least not directly, because the real problem lies not with people like Josh Hawley or Lindsey Graham, however reprehensible they may be.  Rather, it lies with a political structure that grows more frozen by the year.  This is the elephant in the room that no one knows what to do about, least of all office-holders who have taken an oath to preserve, protect, and defend a document that is beyond decrepit.  So they all pretend that the problem doesn’t exist.  Could anything be more pathetic?


1 thought on “The “broken” Supreme Court confirmation process

  1. Mr. Lazare; The American system of government is medieval – you may have said it and for sure people who are smarter than me must have said it – and Ken Burns is one good illustration of that. However, that is not why I am writing this but rather to comment on your book The Frozen Republic: I wish you had expanded more on the German System although you did give it enough space, and after all the book was about the American Republic and not the German Republic. Anyway, that’s beside the point. The first time I heard of the book, you were anxiously trying to get the word out about it as you were being interviewed by Dara Wells. Somehow the book slipped through to NPR’s airways. It must have been something overlooked. Sadly, she was very shallow and didn’t seem to understand or had any interest in the subject, and kept brushing out the arguments with silly wisecracks. Leonard Loped would have been a better choice for such interview, but that’s NPR! I waited for a very long time for the book to come out in paperback and when I got rid of my paper books for the ebook format, that was one of the books I kept and still have in my shelf.

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