"Presidents come and go, but the Supreme Court goes on forever." --William Howard Taft
One of the president's greatest responsibilities is nominating a justice to serve on the Supreme Court in the event of a vacancy. With only nine justices serving on the Court, each one has the power to swing any important decision. With many hot button issues coming before the Court, the stakes for judicial nomination are very high. Thus, the Supreme Court nomination process has gotten extremely contentious recently. Continuing down this path will irreversibly damage the highest court for generations to come.
Years ago, the Supreme Court nomination process was not partisan whatsoever. If the president appointed a nominee who was non-controversial, they would be approved, no matter their judicial philosophy. However, things started changing in the 1960s, as several Court appointees were either rejected by the Senate or withdrawn. In the 1980s, confirmation hearings became even more contentious, as Reagan nominee Robert Bork was rejected by the Senate and the Clarence Thomas hearings were a public spectacle, accompanied by sexual harassment allegations.Justice Samuel Alito was confirmed in 2005 by a close margin after Bush nominee Harriet Miers was withdrawn due to conservative public pressure. All these incidents were dwarfed by President Barack Obama’s nomination of Merrick Garland after Justice Antonin Scalia’s death. Senator Mitch McConnell immediately refused to hold confirmation hearings for Garland because of the forthcoming presidential election. President Donald Trump’s nominee for the same seat, Neil Gorsuch, has faced Democratic opposition and doubt as to whether he will be able to gain the 60 votes needed for cloture. If Senate Republicans decide to eliminate the filibuster for Supreme Court nominees, the partisan intensity of Supreme Court nominations might only grow worse.
Senate Republicans and Democrats are at odds over Gorsuch's nomination for different reasons. Republicans believe Gorsuch deserves a fair set of hearings and confirmation because of their electoral victories. Democrats believe that since Senate Republicans did not hold fair hearings for Garland, they are not obligated to confirm Gorsuch. This stalemate could potentially have disastrous consequences. If Gorsuch is not confirmed, the Court will continue to operate with only eight members, meaning many opinions will be split 4-4 and be sent back to the lower courts. Even worse, the Court might decide not to hear the most important cases for fear of a split decision. If Gorsuch is blocked, it is reasonable to assume that any nominee that Trump puts forward would be blocked as well, and the eight-person Supreme Court would stand for some time.
Long-term consequences are even worse. With this precedent, the opposition party in Congress can push to block any Supreme Court nominee of the other party. The Court would gradually shrink in number if no new nominees get confirmed. Another possible future includes the nuclear option, which would make any nominee confirmable by a simple majority vote. This would increase the nomination process' partisanship and allow the president to nominate and confirm more extreme nominees. The Supreme Court nomination process is veering towards an untenable and extremely partisan place, and the actions of the current Senate are only worsening this partisan swing.
