The theatrical career of Lindsey Graham reached new heights during the recent confirmation hearings for Judge Ketanji Brown Jackson, President Joe Biden's pick to replace retiring justice Stephen Breyer on the U.S. Supreme Court. After a heated exchange with Democratic Sen. Dick Durbin over the legal rights of Guantanamo Bay detainees, the senior U.S. senator from South Carolina walked out of the proceedings, taking his can of soda with him.
The politicization of judicial appointments has become an increasingly important partisan battlefield. Senate Majority Leader Mitch McConnell refused to hear President Barack Obama's nomination of Merrick Garland for a Supreme Court vacancy in 2016, before entering into a Faustian bargain with the newly elected President Trump to deliver a conservative Supreme Court majority. Democrats fought tooth and nail to oppose the nominations of Brett Kavanaugh and Amy Coney Barrett to the Supreme Court in 2018 and 2020.
While Republicans and Democrats both energize their respective party bases by politicizing judicial appointments, a recent Quinnipiac poll indicated that a narrow majority of Americans disapproved of the GOP's handling of Ketanji Brown Jackson's confirmation hearings, stage exits and all.
It is tempting to view the political battles over the Supreme Court as yet another example of our uniquely partisan moment. We would like to comfort ourselves that we can escape the dystopian present by returning to simpler times, when qualified judicial nominations received a fair hearing before a Senate devoid of posturing prima donnas. But, of course, we are imagining a past that never was.
Not only have courts always been politicized in the United States, but partisan wranglings over the so-called "midnight judges" appointed by President John Adams in 1801 actually transformed the power of the fledgling U.S. Supreme Court by creating the constitutional principle of judicial review.
The politicization of judges really began at the tail end of one of the bitterest political campaigns in U.S. history: the election of 1800. After defeating Thomas Jefferson in the first partisan presidential election in 1796, John Adams faced off against his old foe again in 1800. Both sides painted the outcome of the election in apocalyptic terms. Jefferson's opponents claimed he was a godless radical, who would bathe the country in blood. Adams' enemies claimed that 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-duck president was determined to protect the country from Jefferson by entrenching his supporters in the federal judiciary. Congress passed the Judiciary Act in 1801, which created a new system of circuit courts below the Supreme Court. Adams then rushed to fill these new vacancies with his own appointments. Jefferson's supporters dubbed them the "midnight judges," conjuring up a fictional image of John Adams pulling an all-nighter to sign the judicial paperwork before he petulantly stormed out of Washington, D.C., on 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 baked court controversies into the Constitution.
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On 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 whom, William Marbury, sued Secretary of State James Madison for his judge's commission. The case of Marbury v. Madison came before the U.S. 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 Judiciary Act of 1789 to claim the power to strike down unconstitutional laws.
Marbury v. Madison established the principle of judicial review, which remains the Supreme Court's most important power more than 200 years later. It is the main reason why the political stakes of Supreme Court nominations are so high, and, consequently, why the media circus surrounding the often-farcical Senate proceedings has grown so grotesque.
We will not find a way out of the partisan struggle over judicial appointments by looking to the past. The fallible Founders baked court controversies into the Constitution. Instead of trying to return to an imaginary past, where apolitical senators diligently attended to their constitutional responsibilities without regard for party, Americans might need to look elsewhere for inspiration. In the United Kingdom, for example, justices of its Supreme Court are nominated by an independent selection committee. Although building a political consensus to reform judicial nominations may seem fanciful, it is still more realistic than expecting attention seekers like Lindsey Graham to resist grandstanding in the media limelight. ♦
Lawrence B. A. Hatter is an award-winning author and associate professor of early American history at Washington State University. These views are his own and do not reflect those of WSU.
