I wish John Roberts was right.
Last week, after President Trump denounced a federal judge who ruled against his administration’s asylum policy as an “Obama judge,” the Chief Justice replied with a ringing defense of judicial impartiality. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
What Roberts described is certainly the ideal. And it’s true that the courts are not rendering their decisions on legislators’ or presidents’ instructions. But in practice, many judges do end up ruling on the same partisan side as the presidents who select them. As our country has become more polarized, so has our federal judiciary. And that’s bad news for all of us.
The federal judiciary extends far beyond the Supreme Court to 94 district courts, the various lower appellate courts, and a series of more specialized courts. But while some of those appointments are less politicized than others, the example set by the Supreme Court has become hard to ignore. For the first time in our history, going by University of Michigan scholars Andrew Martin’s and Kevin Quinn’s quantitative estimates of judicial polarization, we have a Supreme Court where every Republican on the court is more conservative than every Democrat. Gone are figures like John Paul Stevens, a Republican judge nominated by a Republican president, who usually sided with Democrat-nominated justices on the court. To take another example, Lewis Powell was a conservative Democrat—chosen by Richard Nixon—who often joined the GOP wing of the court.
Nor do we have Anthony Kennedy, of course, who was replaced earlier this year by Brett Kavanaugh. Selected by Ronald Reagan, Kennedy joined Democratic colleagues in upholding abortion, gay rights, and affirmative action.
But Kennedy’s status as a “swing vote” was somewhat exaggerated, blinding us to the overall increase of polarization on the Supreme Court. In recent years, Kennedy joined the liberal wing in 5-4 decisions between a quarter and a third of the time. But in his final term, Kennedy stayed with his fellow conservatives on every 5-4 vote.
Meanwhile, the last two Supreme Court confirmations have proven beyond a reasonable doubt—as judges would say—that the Court has become a blatantly partisan institution. Although Republicans like to point to the failed Robert Bork nomination in 1987 as an example of extreme partisanship in the confirmation process, the truth is that seven justices since then have been confirmed with two-thirds majorities. In 2016, however, Republicans in the Senate blocked a vote on Merrick Garland, Barack Obama’s chosen replacement for the deceased Antonin Scalia. Then they rammed through a rule change to allow confirmation of justices by a straight Senate majority vote instead of the traditional 60-vote requirement, which allowed Trump nominee Neil Gorsuch to join the court in 2017 with only 54 senators supporting him.
That was four more votes than Brett Kavanaugh received earlier this year, winning confirmation by the slimmest possible margin. In the first round of his Senate hearings, Kavanaugh tried gamely to present himself as an independent mind who operated above the partisan fray. Yet after Christine Blasey Ford leveled sexual assault charges against him, Kavanaugh went full-on right-wing conspiracy theorist: “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups,” Kavanaugh thundered at the Senate Judiciary Committee. “The consequences will be with us for decades.”
No matter what you think about Kavanaugh’s performance, he was right about the process. Unless we do something to change the way we appoint and confirm the federal judiciary, it will become exactly what John Roberts fears: just another weapon in our partisan, take-no-prisoners political culture.
We should start by restoring the 60-vote rule for Supreme Court confirmations, which would require presidents to nominate judges who could attract bipartisan support. Senate Democrats changed that rule in 2013, to ease the confirmation route for Obama’s lower court and Cabinet choices, but they retained the 60-vote threshold for Supreme Court nominees.
Then Senate Republicans applied it to the high court itself, which is the only reason Neil Gorsuch and Brett Kavanaugh were able to join it. The best thing we could do right now is to go backwards, to the days when you needed more than a bare Senate majority to be on the Supreme Court.
We should also start identifying judges who could draw support from both parties, which is what many other democracies do. In Germany, where judges must be confirmed by a two-thirds vote of parliament, political parties negotiate over court nominees and come up with judges who can pass bipartisan muster.
Not surprisingly, between two-thirds and three-fourths of Germans express confidence in their highest court. By contrast, just 37 percent of Americans do. And even that number reflects a partisan split: whereas 44 percent of Republicans say they have strong confidence in the Supreme Court, only 33 percent of Democrats agree.
So here’s the challenge, for Americans of every political stripe: find judges from the other side of the aisle whom you could support, even if they wouldn’t be your first choice. We should demand that our Senators do the same. That way, the next time there’s a Supreme Court vacancy, we will already have a list of mutually acceptable candidates.
The alternative is a country of Obama judges and Trump judges, of Bush judges and Clinton judges. That’s Donald Trump’s nightmarish vision, of course, and John Roberts was right to criticize it. But we’re already living the nightmare when it comes to our federal courts. And only a renewed bipartisan spirit will jolt us out of it.