The legendary Supreme Court justice Ruth Bader Ginsburg died at age 87 on Sept. 18, 2020. Americans lost a powerful, strong woman who stood up for women’s rights, as the Republicans are expected to appoint a justice with far different views only a month before the election. As protestors took the streets to support and protest the nomination of Amy Coney Barrett, clashing sides peacefully demonstrated concerns for controversial cases that face further judicial consideration under Barrett. Barrett, a highly conservative nomination, is expected to progress Republican ideology on various issues reviewed by the Supreme Court like abortion rights and gun control. Recent political polarization fuels the partisanship in selecting judges like Barrett, Gorsuch and Kavanaugh. Though it is within the constitutional powers for a president to fill a vacant court seat and the senate to confirm this appointment, the partisanship of judges is becoming more important in selection rather than the judges’ experience in the judicial system or honorable acts.
To understand polarization, it is necessary to identify symptoms of a polarized society, specifically lack of mutual toleration and forbearance.[i] Mutual toleration is the acceptance of all other parties to have a right to govern if governing legally and legitimately. Forbearance is the action of self-control to promote compromise and decrease dissention among political parties. Polarization undermines mutual toleration by viewing the other party as an existential threat to democracy. This leads to the notion of security first, democracy second to protect the nation from the other party. Polarization erodes forbearance by increasing dissent and “bad blood” among parties, leading them further from compromise and middle ground and instead use power whenever available. The lack of mutual toleration and forbearance signal a democracy in decay due to heightened polarization. Through absence of mutual toleration and forbearance, I will examine the polarization in the United States that impacts the judicial nominations process. The lack of forbearance demonstrated through Senate Republicans refusing hearings for President Obama’s judicial nominations is driving future Democrats to dilute the effect of Republican appointed justices by also committing acts of polarizing lack of forbearance. The lack of mutual toleration in the increased use of the filibuster and legislative/executive influence over nominations illuminates the increased desire for partisan judges to fulfill the goal of the party rather than duty to the people.
Upon Trump’s inauguration into the White House, he could fill the seat of Antonin Scalia on the Supreme Court with a justice of his choosing. Though Scalia died in February of 2016, his vacant seat in the Supreme Court was not filled until February 1 2017 by Neil Gorsuch. This is because the Republicans refused to hold hearings for Obama’s nomination to fill Scalia’s seat, Merrick Garland. Though the Senate’s constitutional responsibility is to confirm nominations made by the president, refusing to hold hearings demonstrated a lack of forbearance in constitutional abilities. While no rule or law required Mitch McConnell to hold hearings for judicial nominations, the Senate previously acted out of respect for the president and mutual toleration to the opposition. Just because it is not against the Constitution to refuse hearings, does not mean this was a wise decision.
Now, Democrats are talking of diluting the Republican appointed justices by increasing the number of justices on the Supreme Court if Democrats win the presidential election and control of the Senate. This also represents an action without forbearance and motivated by revenge to ultimately squash the other party from achieving power in the judicial system. This drives each party to nominate highly partisan judges to increase the impact of judicial nominations for the party. Trump’s insistent ambitions to fill every justice he can within his term in fear of liberal justices taking these positions proves the lack of mutual toleration in nominating justices from another party. This drives him to nominate the most conservative justices to heighten the impact of his presidency on the judicial system. This is reflected in his recent nomination of Amy Coney Barrett, a justice with an unwavering conservative history in abortion, gun rights, and health care evident in her previous court decisions. The need for partisan judges reflects the polarized society within the U.S. that requires judges to be strongly left or right, but not centrist jurists.
The process of judicial nominations within the past 20 years has taken a dramatic polarizing turn. Beginning in 2001, Democrat majority leader Tom Daschle referenced the filibuster as “[using] whatever means necessary” to block conservative judges nominated by President Bush. This threat lead to the Democrats using the filibuster “mercilessly” while the Republicans had a slight majority in the Senate from 2002-2004. Republicans then dramatically increased the use of the filibuster to block nominations in the Obama administration, including in 2013 to block Obama’s nominations to the District of Columbia Court of Appeals. As a result, the Democrats employed the “nuclear option” to end the filibuster for non-Supreme Court judicial nominations. This backfired on Democrats when the Republicans gained the senate majority and refused to hold hearings for many Obama judicial nominations, including his Supreme Court nomination of Merrick Garland. The Senate under Mitch McConnell then ended the judicial filibuster to easily approve the nomination of Neil Gorsuch. This back and forth constitutional powerplay leads each party further from the middle, and closer to radical politics. After 20 years, this heightened polarization and lack of mutual toleration lead to the extreme division over the controversies and history of Judge Brett Kavanaugh. Democrats now accuse Republicans Senators of displaying a lack of forbearance in pushing a nomination right before an election, which Republicans opposed 4 years ago. This lack of mutual toleration demonstrated through this 20-year conflict undermines the constitutional duty of the legislative branch to “advise and consent” to judicial nominations of the executive branch.
The heightened stakes for judicial nominations increases the pressure to appoint more partisan justices to the courts. For this reason, presidential “litmus tests” of nomination candidates have become more important in deciding the nomination to push an executive’s agenda. For example, Amy Coney Barrett is expected to pursue Trump’s interests on overturning Roe v. Wade and increased gun rights based on her highly conservative judicial history. Placing more partisan judges in the courts illuminates the lack of mutual toleration for justices from another party. Overall, each party seeks to undermine the effect of the other because they do not trust the other party’s intentions. This is demonstrated clearly through the 20-year process of legislative – executive gridlock over judicial nominations that has increased the partisanship of judicial appointments.
Though tragic, Ruth Bader Ginsburg’s death should remind
Americans of the extreme partisanship in the Supreme Court sponsored by both
parties. Lack of forbearance only divides the parties further from the center
and compromise. This leads executives to nominate justices with `highly
partisan views to create a lasting impression for the party and president. Mutual
toleration allows the parties tolerate one another throughout terms of winning
and losing elections. The lack of mutual toleration leads the parties to become
further polarized and therefore making the courts more polarized and partisan. The
increased polarization and lack of compromise prove the need for unbiased,
unpartisan justices in the Supreme Court to judge both parties fair and equally
without the fear of party manipulation within the judicial branch.
[i] Levitsky, S., & Ziblatt, D. (2019). How democracies die. New York: Broadway Books.