• Sun. Feb 5th, 2023


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Confirmation Hearings, Once Focused on Law, Are Now Mired in Politics

Professor Ringhand broadly agreed. “The hearings are at their best when senators ask real questions about law, and nominees take the opportunity to explain their perspectives,” she said. “We have seen flashes of this, such as when Judge Jackson talks about her judicial methodology, or her work with the sentencing guidelines.”

But the Jackson hearings lacked a theme, Professor Collins said.

“Things got pretty strange at times,” he said. Among the questions posed to Judge Jackson were ones from Senator Ted Cruz, Republican of Texas, about children’s books, from Senator Marsha Blackburn, Republican of Tennessee, about how to define the word “woman” and from Senator Lindsey Graham, Republican of South Carolina, about how faithful she was on a numerical scale.

“The Republicans did seem to coalesce around three main themes over the course of the hearings: that Judge Jackson is soft on crime, that she has an underdeveloped judicial philosophy and that she is the product of a left-wing dark-money campaign to get her on the bench,” Professor Collins said.

Supreme Court nominations are committed to the political branches of the government, meaning they are political by constitutional design. But politics used to be subtext, not front and center.

Partisanship in confirmation hearings can only hurt the Supreme Court’s authority and legitimacy, Chief Justice Roberts said in 2016.

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”