Jackson headed to Supreme Court. Why was it such a nailbiter?

In a historic vote today, the U.S. Senate confirmed Judge Ketanji Brown Jackson as the first Black woman to join the U.S. Supreme Court. 

“What a great day it is for the United States of America, for our system of government, and the grand march of the fulfillment of the sacred covenant we have as an American people: e pluribus unum – out of many, one,” said Sen. Raphael Warnock, a pastor of Martin Luther King’s church in Georgia, on the Senate floor. “Ketanji Brown Jackson’s improbable journey to the nation’s highest court is a reflection of our own journey, through fits and starts, toward the nation’s ideals.”

The 53-47 vote was split largely along party lines, with three Republicans supporting her.

Over the past several decades, the Senate has gone from approving most Supreme Court nominees by generous, bipartisan margins to nearly deadlocking over them. Is this just a reflection of an increasingly polarized Congress – and country? Or are there other dynamics unique to the Supreme Court driving the shift? 

The answer is both. All the forces deepening the partisan divide have contributed to a more politicized confirmation process for the country’s most powerful court. At the same time, the court is increasingly seen as directly influencing everyday life in America, putting more at stake politically. That has led to the removal of certain guardrails, such as the filibuster, which effectively required bipartisan support for nominees. Senators see their role as vetting not only the qualifications, character, and integrity of nominees but also their judicial philosophy or ideology. And if they don’t, they know they could be punished in the next election – in part because of the growing influence of outside groups advocating for or against nominees. 

“The court increasingly is seen as just another branch of government, rather than above politics,” says Democratic Sen. Richard Blumenthal, a former Supreme Court clerk and U.S. attorney for Connecticut who now serves on the Senate Judiciary Committee. “There’s no question that the more political the court becomes, the more seems to be at stake.”

From the Bork hearings to today

In 1987, then-Sen. Joe Biden invited constitutional law scholar Laurence Tribe to help him prepare for the confirmation hearings of President Ronald Reagan’s controversial Supreme Court nominee Robert Bork.

They spent hours together, with the liberal Harvard professor playing the role of Judge Bork in mock murder boards. “It was kind of an awkward fit,” admits Professor Tribe, now a professor emeritus at Harvard.

But there was a bigger question Senator Biden was wrestling with as chairman of the Senate Judiciary Committee: What criteria should they use to evaluate Judge Bork? Republicans were focusing more and more on judicial philosophy, Professor Tribe recalls Mr. Biden saying. Should Democrats do the same? 

The proceedings showed where he came down on that question. Chairman Biden led a charged confirmation hearing in which he and other senators interrogated Judge Bork on his originalist interpretation of the Constitution. They ultimately rejected his nomination, and gave the English language a new verb: to bork someone. 

While many Republicans see the Bork nomination as a turning point, the Supreme Court confirmation process didn’t immediately turn into an all-out partisan war. The next year, Anthony Kennedy was unanimously confirmed. And Clarence Thomas – whose controversial hearings were dominated by Anita Hill’s charges of sexual harassment – ultimately got the support of 11 Democrats in his 1991 confirmation. Likewise, Republicans overwhelmingly supported Ruth Bader Ginsburg, confirming her with a 96-3 vote. 

Republicans and Democrats disagree about when things started really going downhill.

One of the Senate’s longest-serving Republicans says he believes much of the trouble began at a Democratic retreat held in Farmington, Pennsylvania, in 2001 – the year after the Supreme Court had decided the presidential election in favor of Republican George W. Bush.

“[Sen. Charles Schumer, then chairman of the Judiciary Committee,] said that we’re going to now start thinking about judicial philosophy and holding people up that we don’t like,” says Sen. Charles Grassley of Iowa. “It’s been downhill ever since.”

Professor Tribe, whom Senator Schumer brought in to speak to that group in Farmington, along with his Harvard colleague Cass Sunstein, disputes that interpretation. 

“That makes it look like we were springing some new approach of an ideological veto – that wasn’t the case,” he says. From the country’s earliest days, he adds, it had been common to consider judicial philosophy. “We were simply saying that the Democratic Party should wake up.”

Over the past two decades, Supreme Court nominees from both parties have been confirmed with steadily decreasing margins, from John Roberts (78-22) in 2005 to Elena Kagan (63-37) in 2010 to Amy Coney Barrett (52-48) in 2020. 

While the hearings for Justice Roberts were at times contentious, there was an underlying sense then that many Democrats would ultimately cross the aisle – and 22 of them did. That’s no longer the case, says Professor Maxwell Mak of John Jay College of Criminal Justice in New York, who researches judicial confirmations.

In 2016, Republicans wouldn’t even hold hearings for Merrick Garland, whom President Barack Obama had nominated in March, saying it was too close to the November election. Four years later, President Donald Trump nominated then-Judge Barrett in late September and Republicans rushed through her confirmation by Oct. 27, about a week before Election Day.

Republicans also scrapped the filibuster for Supreme Court nominees in 2017, after Democrats had gotten rid of it for lower judicial appointments four years earlier. That effectively meant that whichever party controlled the Senate could confirm a nominee without any support from the other party. 

“The stakes have gotten higher and the votes have gotten lower and lower and lower,” says Professor Mak.

In his nearly 20-year tenure, GOP Sen. Lindsey Graham of South Carolina had never voted against a Supreme Court nominee – until today. He supported Obama nominees Sonia Sotomayor and Elena Kagan. And in 2021, he was one of three Republicans to vote for Judge Jackson’s appointment to the D.C. Circuit Court of Appeals, regarded as the second-most powerful court in the U.S.

But Justice Jackson? “That was a bridge too far for me,” he told the Monitor on the way back from a vote earlier this week. 

“When you just require confirmation within the party, then you’re going to have more ideologically driven people,” says Senator Graham, who adds that he believes President Biden could have gotten more GOP support for one of his other top contenders, Michelle Childs of South Carolina, another Black woman judge who was one of Mr. Biden’s finalists. “When you have to reach across the aisle and pick up some votes from the other side, you have a more consensus pick.”

Many supporters of Judge Jackson took issue with the way Senator Graham and other Republicans treated her during the hearings, aggressively questioning her and using the proceedings to air grievances about Democratic treatment of the last GOP nominee, Justice Barrett.

“I am hearing from people, not just Black women, who are relating to me their stories about having to come into a room where you’re more qualified than the people who are sitting in judgment of you and having to endure the absurdities of disrespect that we saw Judge Jackson endure,” said New Jersey Sen. Cory Booker, a Democrat and one of the chamber’s three Black members. 

More pressure from voters, outside groups

To be sure, part of that is due to the growing polarization in the country – and Congress. 

“The confirmation process is going to have the same kind of mood as the country,” says Lori Ringhand, a professor at the University of Georgia School of Law and co-author of “Supreme Court Confirmation Hearings and Constitutional Change.” 

Supreme Court picks have also become a bigger voting issue within each party’s base, putting pressure on senators.

“These nominations have very much become rallying cries for core voters in each party,” says Professor Ringhand. When opposition senators can’t block a confirmation, they will signal to their voters that they’re doing everything they can to stop the nominee by aggressively questioning them or putting up procedural hurdles. 

And outside groups are increasingly pushing senators to apply litmus tests to nominees, says GOP Sen. Susan Collins of Maine, who faced a tough 2020 reelection campaign after her vote helped Justice Brett Kavanaugh squeak through 50-48 in 2018. The advocacy group Demand Justice ran ads against her, saying her vote went against her campaign pledges to support abortion rights. 

“These outside groups ... are increasingly driving the process,” says Senator Collins, one of the three Republicans to vote in favor of Judge Jackson’s confirmation Thursday. “Think of the fact that Demand Justice hired a truck with a billboard on it demanding that Justice Breyer retire,” she says. “That would have been considered unseemly, inappropriate, a compromising of the court’s integrity and independence, even a decade ago. Now, no one’s surprised.”

This time around, Senator Collins was sharply criticized by a member of her own party, Georgia Rep. Marjorie Taylor Greene, for her support of Judge Jackson.

One key reason for the increased pressure from all sides is a changing perception of the court’s role within the broader system of American government. With Congress often gridlocked, the Court has been increasingly thrust into the position of making policy rather than just upholding it. In coming months, the court is expected to rule on key issues affecting Americans’ lives, including abortion rights, guns, voting, and affirmative action. 

“The court has occupied an even more prominent place in everyday life than people recognized it as occupying in the past,” says Professor Tribe. “That is leading to a reexamination of whether the court has become too powerful and occupied too large a role.”

Staff writer Noah Robertson contributed to this report.