American democracy is built upon the preposition that the political opposition is not the enemy. In their book How Democracies Die, Steven Levitsky and Daniel Ziblatt describe mutual toleration and institutional forbearance as the bedrocks to functional democracy . Toleration of opposing political forces in the United States has enabled the country to endure, yet not without interruption. Partisanship over the spread of slavery ripped the country apart in 1861, when tolerance gave way to a new type of politics. This type of partisan politics is empowered by overt hostility towards the opposition. The opposition is no longer seen as representative of the people’s interests. Institutional forbearance is the preservation of traditional institutions and practices which safeguard democracy. Destroying democratic institutions can be a partisan tool to capture political power. Tolerance of political rivals is especially important for the legitimacy of the judiciary. Political battles over Supreme Court nominations have severely damaged the reputation of the Court as a non-partisan arbiter of justice.
Non-Partisan Nomination Process
Nominations to the Supreme Court of the United States have traditionally been non-partisan. Article II, Section 2 of the US Constitution stipulates that the President nominates Supreme Court justices with the advice and consent of the Senate. The Senate approves or denies Presidential nominees, an effective control against executive supremacy. Between 1880 and 1980, more than 90 percent of Supreme Court nominees were approved . More than a century of non-partisanship culminated in 1986, when Justice Antonin Scalia was confirmed 98-0 in the Senate . Justice Scalia was a known conservative justice nominated by President Ronald Reagan, yet the Democratic Party was willing to concede political capital to institutionally safeguard the Court.
Voting Along Partisan Lines
The non-partisanship of the Court began to erode with Robert Bork, and was shattered with the nomination of Justice Clarence Thomas. Both Robert Bork and Justice Thomas were Republican nominees. Bork’s nomination was struck down 42-58 in the Senate, for his firing of the Watergate special prosecutor was under intense scrutiny by Senate Democrats. Republicans nominated a partisan nominee with political experience in the Nixon White House, while Democrats had rejected a nominee who was supported by the majority of Republican Senators. The non-partisanship of the institution of the Supreme Court was under siege. Justice Thomas was nominated by President H.W. Bush in 1991, and was narrowly confirmed 52-48 in the Senate. Sexual assault allegations by Anita Hill disrupted his nomination, and the Senate voted along partisan lines. 41 of 43 Republican Senators voted to confirm Justice Thomas, and 46 of 57 Democrats voted against his nomination. Supporters of Anita Hill alleged injustice, while supporters of Justice Thomas accused the Democrats of a partisan hit job. Putting aside the merits of both sides, the damage to the nomination process was long-lasting. Opposition to Justice Thomas’s appointment made Supreme Court vacancies an extension of a hyper-partisan political process.
Partisan Justice Today
In his article Stealth Authoritarianism, Ozan Varol argues that the independent judiciary can be dangerous for democracy because it serves as “judicial insurance” for political suppression of the opposition . The nominations of Justice Neil Gorsuch, and Justice Brett Kavanaugh were staunchly opposed by Senate Democrats. Only a Senate rules change in the case of Justice Gorsuch, and a grueling confirmation hearing for Justice Kavanaugh led to their confirmations. The approval of appointees of the other party would lead to much needed toleration of the opposition, and institutional forbearance calls for non-partisan appointees that protect the standing of the Court. Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Random House, 2019), 136.  Ibid.  Ibid.  Ozan Varol, Stealth Authoritarianism, 1687.
Photo by Steve Petteway, “Antonin Gregory Scalia”, Creative Commons Zero license