Jhe theatrical career of Lindsey Graham reached new heights during recent confirmation hearings for Justice Ketanji Brown Jackson, President Joe Biden’s choice to replace incumbent Justice Stephen Breyer on the United States Supreme Court. After a heated exchange with Democratic Senator Dick Durbin over the legal rights of Guantanamo Bay detainees, the US senator from South Carolina withdrew from the proceedings, taking his soda can with him.
The politicization of judicial appointments has become an increasingly important partisan battleground. Senate Majority Leader Mitch McConnell refused to hear President Barack Obama’s nomination of Merrick Garland for a vacant Supreme Court post in 2016, before striking a Faustian deal with newly-elected President Trump to win a conservative majority on the Supreme Court. Democrats fought tooth and nail to oppose the nominations of Brett Kavanaugh and Amy Coney Barrett to the Supreme Court in 2018 and 2020.
As Republicans and Democrats energize their respective party bases by politicizing judicial appointments, a recent Quinnipiac poll indicated that a slim majority of Americans disapprove of the GOP’s handling of Ketanji Brown Jackson’s confirmation hearings, exits stage and all.
It’s tempting to look at the political battles over the Supreme Court as another example of our unique partisan moment. We would like to take comfort that we can escape the dystopian present by returning to simpler times, when qualified judicial appointments received a fair hearing before a prima donnas-less Senate. But, of course, we imagine a past that never existed.
Not only have the courts always been politicized in the United States, but partisan wrangling over the so-called “midnight judges” appointed by President John Adams in 1801 actually transformed the power of the fledgling States Supreme Court. United in creating the constitutional principle of judicial review.
Jhe politicization of judges has really begun at the end of one of the most bitter political campaigns in United States history: the election of 1800. After defeating Thomas Jefferson in the first partisan presidential election in 1796, John Adams again faced his old enemy in 1800. Both sides painted the election result in apocalyptic terms. Jefferson’s opponents claimed he was an unholy radical, who would bathe the country in blood. Adams’ enemies claimed he harbored monarchical ambitions and was in cahoots with the British.
John Adams ultimately lost the election of 1800. But while he still occupied the White House and his Federalist party still commanded majorities in Congress, the lame president was determined to protect Jefferson’s country by entrenching his supporters in the federal court system. Congress passed the Judiciary Act in 1801, which created a new system of circuit courts under the Supreme Court. Adams then rushed to fill these new vacancies with his own appointments. Jefferson supporters dubbed them the “Midnight Judges”, conjuring up a fictionalized image of John Adams pulling an all-nighter to sign court papers before storming out of Washington, DC, the morning of Jefferson’s inauguration.
We will not find a way out of the partisan struggle over judicial appointments by looking to the past. The fallible founders incorporated the legal controversies into the Constitution.
Taking control of the White House and Congress, Jefferson and his supporters moved to repeal the Judiciary Act, and he refused to issue commissions to 11 of Adams’ appointments. One of them, William Marbury, sued Secretary of State James Madison for his commission as a judge. The affair of Marbury v. Madison came before the United States Supreme Court in 1803, presided over by Jefferson’s longtime political rival and distant cousin, Chief Justice John Marshall. The court ruled in favor of Marbury by exploiting the contradiction between the Constitution and an earlier Court Act of 1789 to claim the power to strike down unconstitutional laws.
Marbury v. Madison established the principle of judicial review, which remains the most important power of the Supreme Court more than 200 years later. This is the main reason why the political stakes of Supreme Court appointments are so high and, consequently, why the media circus surrounding the Senate’s often far-fetched deliberations has become so grotesque.
We will not find a way out of the partisan struggle over judicial appointments by looking to the past. The fallible founders incorporated the legal controversies into the Constitution. Instead of trying to return to an imaginary past, where apolitical senators assiduously carried out their constitutional responsibilities without regard to their party, Americans might need to look elsewhere for inspiration. In the United Kingdom, for example, the judges of its Supreme Court are appointed by an independent selection committee. While building political consensus to reform judicial appointments may seem fanciful, it’s even more realistic than expecting attention-seekers like Lindsey Graham to resist grandstanding in the media spotlight. ♦
Lawrence BA Hatter is an award-winning author and associate professor of ancient American history at Washington State University. These opinions are his own and do not reflect those of WSU.