Judicial confirmations now polarize the parties. It’s a trend Benjamin Wittes tried to resist. In The Atlantic he writes, “I have never lost a public debate more completely.” Republicans and Democrats alike have made judicial nominations a tug-of-war between team red and team blue, and “the search for the original sin is a mug’s game.”
And so we come to a place where Brett Kavanaugh is preponderantly likely to be confirmed by the Senate, yet for all the wrong reasons. He will be confirmed not because he is well qualified to sit on the Supreme Court, though he is certainly well qualified. . . .
He will be confirmed because there are 51 Republican senators in office and a Republican vice president who can break a tie if need be.
That’s an odd way to put it. Kavanaugh’s confirmation would be in much more doubt, even with the current partisan line-up of the Senate, if his qualifications also were. Harriet Miers’s nomination failed in a Republican Senate in part because of questions about her qualifications. I think what Wittes means is that Kavanaugh would not be likely to win confirmation if the Democrats controlled the Senate.
What’s changed, that is, is how nominations are treated by the party out of the White House. That could make a difference in the outcome of a nomination when the White House and Senate are controlled by opposite parties. Four of the last 13 Supreme Court vacancies arose in such situations; in two of the four cases — those of Robert Bork and Merrick Garland — the initial nominee did not make it to the Court.
The greater oddity is that Wittes never pauses to reflect in this essay (although he may have done so in other writings) on the sustainability of a Supreme Court that plays as large a role in setting public policy on intensely controverted issues but is not treated as a site for partisan warfare. Wasn’t the real mug’s game trying to keep political actors from fighting over the Court as it became a bigger political prize? The politicization of judicial confirmation followed, and was a rational response to, the judicialization of politics.