The Supreme Court confirmation process is actually less political than it once was

tags: Supreme Court, politics

Timothy S. Huebner is the Sternberg professor of history at Rhodes College and author of numerous works on the Supreme Court, including “History of the Supreme Court."

The deep partisan divide over Justice Brett M. Kavanaugh’s bitter confirmation hearing remains, even months later. A toxic cloud hangs over the Senate Judiciary Committee, and once-routine processes (like setting hearing dates for judicial nominees) are now sharply contested.

But if our current nomination and confirmation process for Supreme Court justices is broken, as many have suggested, it is not because it has become more political than it used to be. Instead, history shows that the appointment process may actually be less political than it was during the 19th century. But transformations during the 20th century have gradually left politics and ideology as the main battleground in confirming judges, leaving the false impression that the process is far worse than in the past.

During the first century or so of the Supreme Court’s history, selecting and confirming judicial nominees was political and sharply contentious. From the start, presidents picked nominees whom they assumed generally agreed with their political philosophy, and some, such as Andrew Jackson and Abraham Lincoln, even rewarded cronies with seats on the court. Unlike today, many nominees for the court lacked prior judicial experience. In fact, of the 57 justices nominated and confirmed between 1789 and 1898, 17 lacked substantial judicial experience at either the state or federal level. Instead, they were private attorneys, legislators or Cabinet secretaries.

Perhaps the best evidence that the nomination and confirmation process long existed within the rough and tumble world of politics was the high number of unsuccessful nominees. For the first century or so of the nation’s history, close confirmation battles and unsuccessful nominations (including nominees withdrawn, postponed or upon which the Senate failed to act) were a regular occurrence.

Because the presidency as an institution was relatively weak, the Senate seemed to assert its power more forcefully than it does today. During 1844-1845, President John Tyler set the ignominious record of four unsuccessful nominees. A states’ rights Democrat who had run with the Whig William Henry Harrison, Tyler became the first vice president to ascend to the presidency after the death of a president, and his accidental status as president and troubled relationship with Senate Whigs doomed all but one of his nominees. ...

Read entire article at The Washington Post

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