On January 27th, Supreme Court Justice Stephen Breyer announced his retirement from the highest court of the land. Shortly after the news broke, President Biden swiftly reiterated his intention to appoint a Black woman as Breyer’s replacement. On the campaign trail, the President pledged to bring about more diversity and representation to an institution historically dominated by white men. The news was a sigh of relief for Democrats and their top leadership. With the 2022 midterms fast approaching and Republicans poised to regain majorities in both the House and the Senate, Democrats have been urging Breyer to resign from the start of Biden’s presidency.
However, other roadblocks may still exist as some Republicans raise opposition to the choice of a Black woman due to the belief that such a nomination is an example of affirmative action. More importantly, the ongoing speculation and media coverage surrounding the upcoming confirmation process reflects the intense partisanship that has clouded the past few Supreme Court confirmations, most notably those under President Trump’s tenure. For the betterment of the country and the legitimacy of our institutions, the Senate should take advantage of this opportunity to restore credibility and non-partisanship to the Supreme Court.
Most can recall the controversy surrounding the death of Antonin Scalia and the vacancy left in the Supreme Court nine months before the 2016 election. President Obama had picked Merrick Garland, a long-time favorite to serve on the Supreme Court and a moderate who also had the goodwill of many Republicans, to fill Scalia’s seat. Nevertheless, the Senate Majority Leader Mitch McConnelll and several other top Republican leaders vowed to not hold any confirmation hearings under the pretense it was a presidential election year and that it was the responsibility of the next President to appoint a successor. This move angered many Democrats and effectively denied Obama his chance to carry out one of his most important roles as President. Subsequently, President Trump swiftly nominated Neil Gorsuch, who was confirmed by the Senate to fill the vacancy in 2017, much to the chagrin of Senate Democrats who were nearly united in their opposition.
A year and a half later, President Trump’s second nominee to the Supreme Court, Brett Kavanaugh, was accused of sexual assault by one of his high school classmates, Dr. Christine Blaisey Ford. As soon as the allegations broke, Democrats demanded action be taken by the Senate Judiciary Committee to vet these serious claims. The Committee, under the leadership of Iowa Republican Senator Chuck Grassley, decided to allow both Kavanaugh and Ford to present their accounts of the night in question. During his testimony, the Supreme Court nominee burst out in an unprecedented show of rage by accusing Democrats of being “fueled with pent-up anger” against President Trump and saying that the allegations were acts of “revenge on behalf of the Clintons.” The scene was an astonishing departure from the decorum and etiquette representative of the Supreme Court. Nevertheless, Kavanaugh was cleared of wrongdoing by an FBI investigation (which some considered to be rushed), and was promptly confirmed in a divisive 50-48 vote.
Then in 2020, President Trump’s nomination of Amy Coney Barrett drew the ire of Democrats as it contradicted the standards set by Republicans in the 2016 nomination of Merrick Garland. The sudden passing of feminist icon and Supreme Court Justice Ruth Bader Ginsburg created an unexpected vacancy weeks before a presidential election, notably months shorter than the time left by Scalia’s death. Despite earlier refusals to confirm a nominee in an election year, Republican leaders such as Mitch McConnell insisted this situation was different since the Senate and President were of the same party. They decided to move swiftly on the night of Ginsburg’s death, in order to further cement a conservative majority on the Supreme Court for decades to come. To little surprise, Amy Coney Barrett was confirmed to the Court on October 26th, 2020, a week before Election Day. This hypocrisy showcased how the nomination process has been corrupted with partisan political games at the expense of the sanctity and legitimacy of the most consequential court in our country.
Despite the controversy surrounding the past three confirmations, the nomination of Justice Breyer’s successor should be treated as an opportunity to dial down, if not remove partisanship from a process that used to not be so divisive. While it may be impossible to completely ignore the political aspect of the process, President Biden should ensure that his team properly vets and eventually supports a candidate that is becoming of the Supreme Court. Meanwhile, Republicans should be willing to consider crossing the aisle to preserve the health of our institutions. Some signs of healing are already visible through statements made by Republicans who are supportive of Biden’s pledge to nominate a Black woman. To those who oppose the President’s potential nominee on the basis of his pledge, I implore them to understand the importance and power of representation, especially in the case of an important and vital institution like the Supreme Court. In addition, this wouldn’t even be the first time such a promise was made. Previous presidents, such as Ronald Reagan and Donald Trump, pledged to nominate women to the Supreme Court in an effort to increase representation. Republicans should use the upcoming confirmation as a chance to support the established precedent of supporting the President’s prerogative when it comes to equal representation. The bodies which govern us derive their power from the people and must therefore do their best to earn our trust and be made up of the people who represent America. Ultimately, I hope that Justice Breyer’s retirement allows us an opportunity to reset and reconstitute the judicial branch with the integrity and legitimacy it deserves.
Categories: Domestic Affairs