News Journal: The Supreme Court has been politicized. That is bad for democracy.

“You worked in the Senate for 100 years, right? So why did Bret Kavanagh get confirmed and what does it mean for the future of the Supreme Court?”
Exaggeration of my age notwithstanding, I did get asked that question yesterday. It’s a good one, and to answer it I have to go back in history.
The key date is 1987, when President Reagan nominated Robert Bork.
I had gone to work for then-Sen. Joe Biden in 1973 and had been involved in Judiciary Committee issues from that point on. The Supreme Court confirmation process had been pretty much a yawn. Nobody paid much attention.
Reagan‘s nominee just before Bork, Antonin Scalia, had been confirmed 98 to 0.
Certainly Republican presidents appointed more conservative jurists and Democratic presidents appointed more liberal ones. But in recent history, there had been a general consensus in both the executive and legislative branches that nominations were not overtly political, that the first and foremost considerations of both the president and the Senate were the judicial qualifications of the nominee.
The difference in how and why Bork was nominated was summed up at the time by Bruce Fein, a top Justice Department official under President Reagan.
“It became evident after the first term,” Fein wrote, “that there was no way to make legislative gains in many areas of social and civil rights. The president has to do it by changing the jurisprudence.”
Fein also said, “It is imperative that President Reagan scrupulously examine the philosophies of his nominees to vindicate many of the pledges he made to the American People in 1980 and 1984.”
In other words, what President Reagan could not accomplish legislatively by working with Congress he was determined to accomplish through the judiciary.
Reagan wasn’t the first president to overtly try to politicize the Supreme Court. Andrew Jackson and Franklin Roosevelt had tried the same thing, and in both cases were met with fierce resistance in the United States Senate.
In July of 1987, Biden went to the Senate floor and gave a summary of his view of the history of the Senate’s role in the Supreme Court confirmation process. He cited what had happened to Jackson and Roosevelt and said, “We are once again confronted with a popular president’s determined attempt to bend the Supreme Court to his political ends. No one should dispute his right to try. But no one should dispute the Senate’s duty to respond.”
Fifty-eight senators in a Democratic-majority Senate rejected the Bork nomination. But as partisan as votes on Supreme Court nominations became after Bork, for years some senators on both sides of the aisle seemed willing to at least remember when a nominee was expected to display a genuine nonpartisan approach to the law.
Fast forward to March of 2016 when President Obama nominated Merrick Garland to replace Antonin Scalia on the Supreme Court. Garland had more federal judiciary experience than any Supreme Court nominee in history. Sen. Orrin Hatch (R-UT), the longest-serving Republican senator on the Judicial Committee, had actually suggested that President Obama nominate Garland to earlier Supreme Court vacancies.
But Senate Republicans, in an unprecedented and purely political move, killed Garland’s nomination by blocking a vote for 293 days until the Senate adjourned.
During his presidential campaign in 2016, going even farther than President Reagan, Presidential candidate Donald Trump explicitly promised to use his appointments to the Supreme Court to further his political objectives. In fact, during his campaign he announced a list of 21 potential nominees, all pre-vetted by the conservative Federalist Society.
On the Christian Broadcasting Network, Trump said: “I think evangelicals, Christians, will love my pick and will be represented very fairly.”
Had any president in history ever before blatantly promised to appoint a Supreme Court justice who would represent the interests of just one group of Americans?
True to his promises, both Justices Neil Gorsuch and Brett Kavanaugh had been on the Federalist Society’s list of politically approved judges. Both were narrowly confirmed by a Republican-majority Senate that had eliminated the long-standing tradition of a 60-vote majority for Supreme Court justices.
And an angry Kavanaugh, in the ugliest confirmation scene in my memory, openly told “outside left-wing opposition groups” they could expect that “what goes around, comes around.”
So the answer to my friend is that the future of the Supreme Court as an impartial arbiter of American justice does not look bright. I predict that, for the foreseeable future, Supreme Court nominees will be confirmed only when the president and the Senate’s majority are of the same party. Nominees will be partisan soldiers sent to the court to represent their party’s interests.
I have long felt that the Great Recession’s terrible economic impact on so many Americans has been the cause of the coarsening of our political debate and our partisan gridlock. Until recently, I thought this would be temporary and that, as the economy improved and people felt better about their lives, political leaders would be elected who wanted to reach bipartisan solutions to our problems.

I’m less certain of that today. Supreme Court justices serve for life. No matter what happens in the executive and legislative branches of government, for years to come a politically partisan court will do irreparable harm to our democracy.

Ted Kaufman is a former U.S. Senator from Delaware.

He was also Sen. Joe Biden’s chief of staff when Biden sat on and chaired the Senate Judiciary Committee.

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