In a period of stark partisan divides – when presidents rarely invite members of the opposite party to meet in the White House – Washington took notice this winter when President Joe Biden conferred with Senator Charles Grassley, the leading Republican on the Judiciary Committee, before he decided to nominate Judge Ketanji Brown Jackson to fill a looming vacancy on the Supreme Court.
Judge Jackson was confirmed Thursday by a 53-47 vote in the Senate, with only three Republicans supporting the 51-year-old who is to become the first Black woman on the nation’s highest court. Mr. Grassley was not one of the three GOP lawmakers to break with the party’s solid opposition to confirming the President’s nominee. Mr. Biden’s outreach was for naught.
Indeed, in this vote for a lifetime appointment on the court that stands as the principal adjudicator of contentious legal and political issues, there were no surprises in a chamber that these days itself offers few surprises. Major issues repeatedly come to the floor and often are disposed of with votes that reflect, with some minor deviations, the 50-50 party division that gives Vice President Kamala Harris the power to break a tie in the Democrats’ favour. The vote to succeed retiring Justice Stephen Breyer was no different.
“This was, for Republicans, a partisan call rather than an ability call,” said Bev-Freda Jackson, who teaches courses in race, justice and public policy at the American University School of Public Affairs. “She is not an outlier, and she is replacing a justice appointed by a Democrat, so there isn’t even the explanation that she was ideologically unsuited. She was nominated by a Democratic president and that was enough.”
It isn’t only politicians whose views are relentlessly partisan. It’s also the public. Democrats overwhelmingly supported the confirmation of Judge Jackson, according to a YouGov survey that found that Republicans overwhelmingly opposed her confirmation. It is significant that Independents were virtually split.
The three Republicans who voted to confirm Judge Jackson were senators Susan Collins of Maine, Mitt Romney of Utah and Lisa Murkowski of Alaska. They had also voted to convict president Donald J. Trump in his second impeachment trial last year. Of the three, only Ms. Murkowski faces the voters this autumn, and Mr. Trump has vowed to help defeat her.
The Jackson vote may not have been a departure from form, but it reflected a major departure from history.
For decades, the decision to confirm Supreme Court nominees was made primarily on the basis of the qualification of the presidential choice. Ideology was mentioned – the nominees’ votes on substantial issues often were foreshadowed – but were seldom the deciding factor.
No one was surprised that Antonin Scalia turned out to be a strict constructionist of the intent of the founders who wrote the Constitution and a reliable conservative vote. He was confirmed unanimously in 1986, including by the Democrats, who generally opposed his view but still supported him. No one was astonished that Ruth Bader Ginsburg went on to become a crusader for women’s rights and a hero of the left. She was confirmed by a 96-3 vote in 1993, with all but three Republicans supporting her confirmation.
Mr. Grassley, who was a member of the Judiciary Committee at the time, voted for Judge Ginsburg, who had a profile farther to the left than Judge Jackson. So did Orrin Hatch, the conservative from Utah who was the top Republican on the panel at the time. Mr. Hatch, now retired, often said he was proud of his vote for Judge Ginsburg.
“These votes in the past were not party votes,” said Mark Nordenberg, the dean of the University of Pittsburgh Law School at the time and later the university’s chancellor, who discussed the matter with Mr. Hatch, a graduate of the school. “They were bipartisan votes focused on the nominees’ qualifications.”
No longer. The three Trump nominees who preceded Judge Jackson were approved by votes of 52-48 (Amy Coney Barrett, 2020), 50-48 (Brett Kavanaugh, 2018), and 54-45 (Neil Gorsuch, 2017). Mr. Grassley voted for all three.
“He’s a cagey politician,” said Barbara Trish, a political scientist at Iowa’s Grinnell College. “He’s very good at giving a nod to bipartisanship and integrity in the process and then making a decision that might seem at odds with that.”
Republicans and Democrats disagree about which party is most responsible for the transformation in the way the Supreme Court is viewed.
Republicans believe the way the Democrats doomed Ronald Reagan’s 1987 nomination of Robert Bork represented the contemporary opening of this judicial warfare. (The chairman of the Senate Judiciary Committee at the time was Mr. Biden, then a senator from Delaware.) Democrats believe the way Senate Republican leader Mitch McConnell of Kentucky blocked Barack Obama’s selection of Merritt Garland for the court and then muscled Mr. Trump’s nomination of Judge Barrett through to confirmation rendered the process irredeemably partisan.
And yet for all the protestations – and today, the greatest protester is Chief Justice John Roberts, who repeatedly argues the court is not, and should not be, partisan – the Supreme Court always has been a political body. The political humourist Peter Finley Dunne, writing under the pseudonym Mr. Dooley, argued in a faux Irish-American brogue in 1901 that “th’ Supreme Coort follows th’ iliction returns.”
It still does, and so does the Senate.
“We are in a tough moment,” said Christopher Borick, a political scientist at Muhlenberg College in Allentown, Pa. “Everybody makes choices as much because of their animosity to the other side as they do in support of their own beliefs.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.