Nine: Inside the Secret World of the Supreme Court

The Nine: Inside the Secret World of the Supreme Court


Acclaimed journalist Jeffrey Toobin takes us into the chambers of the most important—and secret—legal body in our country, the Supreme Court, revealing the complex dynamic among the nine people who decide the law of the land. An institution at a moment of transition, the Court now stands at a crucial point, with major changes in store on such issues as abortion, civil rights, and church-state relations. Based on exclusive interviews with the justices and with a keen sense of the Court’s …

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Which party does the fight for the nomination of the supreme court benefit?(r/NeutralPolitics)

In trying to find an answer to your question, what I actually discovered is that the academic literature on political obstructionism is shockingly meager. The extant work usually talks about the appointments themselves or is limited to case studies. I really don’t see anything at all about the political consequences of simply refusing to participate in the judicial consent process. Anecdotally, we know that slowing or stopping anything that could be a political win for Obama has been a top priority of Senate Republicans since he was inaugurated, and they were rewarded with strong Congressional wins in 2010 and 2014 as a result. However, those were midterm elections with lower turnout, which benefits Republicans. So, you can’t necessarily make a causal argument there.

My personal feeling is that for the next couple months, not confirming someone is going to be a win for Republicans but in the long-term? I think it benefits the Democrats. Here’s why: The Supreme Court is arguably the most respected and trusted institution in American government. I say that even after Bush v. Gore, which caused a substantial drop in institutional trust both inside and outside the court. The approval of the Supreme Court hit an all-time low of 44% in 2012 which might sound bad but bear in mind that George W Bush’s approval hovered around 20% for nearly the entire last six months of his administration and Obama and Bush’s average approval for their administrations was not much higher than the Supreme Court’s all-time low. The legislative branch is doing even worse. Congress’ approval rating has been at 20% or below for four and a half years.

So, while the entire government is looking worse over the past 15 years than it has at any point since we’ve bothered to keep track of these things, from a relative perspective, the Supreme Court remains the most trusted and the most popular institution in the federal government. There’s been a lot of discussion about which party deserves the blame for politicizing the judicial nomination process with many observers pointing to the failure to confirm Robert Bork on ideological grounds as the first sin.

For our purposes today, I think the nomination of Thurgood Marshall’s replacement Clarence Thomas is more informative. Part of the reason Democrats had rejected Bork was that his nomination had come on the heels of a concerted and very bald attempt to pack the court with [very conservative justices.] (…). According to Martin and Quinn every single justice appointed in the 1980s was way more conservative than the justice they replaced, even if the justice they replaced had been appointed by a Republican, leading to the court becoming very conservative in the 80s. In fact, the only thing that kept the court from becoming a near permanent far-right institution was the conservative “mistake” of appointing David Souter, and the tendency of justices to become more liberal over time. Stillinall, Martin and Quinn suggest that the court has been right of center pretty consistently for nearly 40 years.

In other words, you could make an argument that Reagan and HW Bush were abusing a norm of confirming justices on qualifications alone by naming qualified but very conservative justices. Despite strong ideological differences, all of Reagan’s nominees, except Bork, were approved, often overwhelmingly so despite the Senate being Democratically controlled throughout much of his administration.

That’s why the Marshall replacement is so informative here. Democrats confirmed Thomas despite the Anita Hill hearings, and despite the fact that he was replacing the first ever African American supreme court justice with a record that nearly assured he would be vehemently opposed by the black community. If Republicans were to abide by the norms they’re holding Democrats to today, they would have nominated a moderate and likely minority candidate in 1993, but they didn’t. They nominated arguably the most conservative justice in modern history to replace one of the the court’s most liberal champions.

This is all by way of saying that despite the recent norms of bi-partisan rancor, Senate Republicans don’t have a historical tradition to stand on. Democrats have generally been cooperative with Republicans on this front for the last 45 years (bear in mind, Republicans have named 18 of the last 22 justices to the court). If the Republicans let this drag out, it may be catnip for their base but anyone who values governance and rule of law over partisan politics (which I naively believe is still a healthy proportion of the population) simply won’t stand for it. If politicians start stymieing the progress of what would now be a third branch of government, I would tend to believe that Republicans will feel more wrath for it than Democrats.

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The Nine: Inside the Secret World of the Supreme Court

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Which party does the fight for the nomination of the supreme court benefit?

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