Dysfunctional partisanship was a reason I had strongly supported George W. Bush in 2000, something I would eventually come to regret. As a native Texan who spent his high school and college years in the state, Texas had been predominantly a solid Democratic state (at the state level) until John Tower won LBJ's vacated Senate seat in 1961. Clements would later (1980's) win nonconsecutive terms as the first GOP governor since Reconstruction. I myself registered as a Democrat as a young voter and would later leave the party by Reagan's second term (I felt marginalized as a conservative and the final straw was the Democrat sniping of the Bork nomination to SCOTUS). When George W. Bush challenged popular incumbent Texas Governor Ann Richards in 1994, it was not a given. (Note that I had moved out of state the prior year to start my DBA career and haven't resided in Texas since then (job offers fell through).)
I did track Gov. Bush's progress via the Internet and was impressed by his forging a popular bipartisan agenda, culminating in a resounding reelection and becoming an instant GOP contender just 8 years after his Dad lost his reelection bid. I had become disillusioned with tribal bickering on the national stage and perhaps unrealistic expectations that Bush could bring the same political strategies to bear on the national stage, having learned lessons from his father's failed reelection.
I don't think I really have to review the history of failed or contested nominations, nearly all GOP nominations: Bork, Thomas, Estrada, and Kavanaugh. The Dems really haven't had the same, although they are furious at losing the Garland nomination (no hearing or floor vote) and the RBG vacancy in election years where the GOP controlled the Senate. Then the late Dem Senate Majority Leader Reid, frustrated by slow progress on Obama lower-court judicial nominations, revised filibuster rules. McConnell later extended that rule to SCOTUS nominations.
In our federal government of 3 branches, it is understandable that the executive and legislative branches have a role in the makeup of the judicial branch. The advise and consent role (Article II, Section 2, Clause 2) provides constraints and accountability for SCOTUS nominations by the nation's only national elected official. The legislative scrutiny provides an incentive for the selection of properly vetted qualified judicial candidates vs.cronies. One clear example of this point was George W. Bush's attempted nomination of Harriet Miers, Bush's personal attorney who had been appointed to positions when he was Texas governor. Even Congressional Republicans balked that Bush's appointments to the Courts of Appeal were more qualified and had more of a written track record; Miers' written responses to questions submitted by the Judiciary Committee were characterized as inadequate. Miers reportedly withdrew under pressure and was replaced by Alito.
I'm not sure the Founding Fathers envisioned that court nominations would become the partisan battlefields we see today. The Constitution does not require a super majority for approval. I share my fellow conservatives' concerns over progressives' construct of a living Constitution, whereby presentist ideological perspectives are imposed by unchecked judicial fiat vs. constitutional amendment, enabling virtually unchecked central government expansion at the expense of state authority in our federal system and of personal liberty. For example, traditionally healthcare, marriage, and abortion were regulated at the state level, not subjected to a federal judicial veto, a power not enumerated by the Constitution. There is also a concern over legislating from the bench. (Don't get me started on the abusive notion of incorporation used to meddle in state affairs, Footnote 4 (which enabled virtually unchecked growth in federal governance), etc.) On the individual liberty level, we can cite things like civil asset forfeiture, the Patriot Act, qualified immunity, and eminent domain. There can be no doubt that any progressive nominee, including Judge Jackson, would not fare well under my scrutiny.
That being said, I have respect for KBJ's scholarship, professionalism and accomplishments. I actually like her experience as a public defender, which I think makes one more sensitive to the Bill of Rights. I do not like the explicit role identity politics played in Biden's nomination process, his related campaign promise. I think racially-motivated selections are explicitly discriminatory and unconstitutional. I thought Biden would have better served to offer a broader list of prospective nominees.
I see the public Committee hearings as a kabuki dance, more political grandstanding I watched part of the first day on CNN, didn't see the second or third days. I did find the soundbite of Sen. Blackburn asking an apparently stumped KBJ to define a woman rather amusing; I can only speculate she was trying to dodge transsexual issue discussions she might have to rule on. And I thought Sen. Booker's tearful defense of KBJ was unconvincing and emotionally manipulative.
But constitutionally, I think the largely partisan voting on judicial nominees is disconnected from the historical record of judicial confirmations. I do think a lot of this initiated with FDR's frustration with SCOTUS ruling some of his pet legislation as unconstitutional and thus tried to pack the court with political cronies. On the surface, FDR failed, but soon thereafter in Carolene Products, SCOTUS introduced Footnote 4, which basically gives Congress the benefit of a doubt, short of discrimination, on legislative issues. (In the blog, I have frequently panned Carolene Products and Footnote 4. This case had to do with Big Dairy opposing competitive canned filled milk. They lobbied Congress to abuse its interstate commerce authority, constitutionally intended to promote a free market among the states, to ban shipments of Carolene Products filled milk across state lines.)
I don't mean that disputed nominations were unprecedented beyond those mentioned in this essay. But as recently as Obama's Presidency, both of his nominations got over 60 votes, bipartisan votes, while over 40 Dem senators have voted against each GOP nominee since Alito in 2005, while from Blackmun (1970) through Breyer (1994), you had multiple unopposed confirmations and most with 87 or above votes, super-majorities, even after divisive Roe v Wade.
Although I understand given the Dems' largely partisan votes against more recent GOP nominees why the GOP vote against KBJ will be heavily negative, I think the nation would be better served by limiting the confirmation on KBJ's established, indisputable qualifications. We need an independent judiciary, not a partisan one. Will any GOP senators support KBJ? Not sure, maybe Murkowski and Collins, who had voted for her nomination to her current position, hopefully others. I would not have nominated KBJ, but I would vote for her confirmation.
