A Senate reset for approving a new justice

Here are a few reasons the confirmation process for the president’s nominee to the Supreme Court could break from past political tactics.

Supreme Court Justice Stephen Breyer announces his retirement at the White House Jan. 27 as President Joe Biden looks on.

American democracy has enjoyed long periods of lawmakers in Washington being bound by a shared norm: Each party understood that tactics it used while in the majority would be used by the other when power changed hands. Recent decades of rising polarization, however, have eroded that stabilizing restraint and, along with it, much civic regard for minority interests. A continuous cycle of escalation, Brookings Institution scholar Benjamin Wittes told a federal panel last year, has given each party “a significant incentive to violate the current norms when it has the chance.”

Could the coming Senate consideration of a Supreme Court nominee to replace retiring Justice Stephen Breyer alter this slide – or perhaps rekindle some political warmth on Capitol Hill?

Given recent precedents of unrestrained battles in filling a vacancy on the court, that idea may seem far-fetched. Lawmakers, and special interest groups behind them, are squaring off as President Joe Biden searches for a candidate to nominate in coming weeks.

The Senate’s voting trend in past confirmations has shown a steady decline in cross-party support for nominees. In 1994 Justice Breyer received 87 votes in a 100-seat Senate. The last justice to join the court, Amy Coney Barrett, was confirmed in 2020 without a single Democratic vote. That difference reflects how politicized Supreme Court confirmations have become.

Yet conditions favor a thaw. The last three openings represented opportunities to shift the ideological balance of the court. Not this time. Justice Breyer has reliably sided with the liberal bloc, and his replacement likely will too. Democrats control the White House as well as the Senate Judiciary Committee. Other factors may help restore civility as well. Mr. Biden chaired that committee for eight years. He has deep ties with many senators and respect for the institution’s gentler deliberative norms.

Perhaps most importantly, many Americans are tired of scorched-earth politics. A report by the organization Public Agenda found last fall that 8 in 10 Americans thought partisan hostility was a “serious problem.” At the same time, roughly 75% of those surveyed agreed that different political viewpoints should be accommodated and that they could learn by talking with people with whom they disagreed.

That desire for civility and listening can be a powerful influence on political behavior. As Justice Breyer noted in a conversation at the Edward M. Kennedy Institute for the U.S. Senate in 2020, senators at a confirmation hearing “by and large will ask the questions that they think their constituents want asked.”

To a large extent, the deepening hostility in Supreme Court confirmations reflects lasting grievances that both parties harbor over what they see as personal attacks against nominees from across the aisle. Breaking that cycle requires small gestures and sustained effort.

Mr. Biden has promised to nominate a Black woman. In a “Face the Nation” interview, Lindsey Graham, the Republican senator from South Carolina who chaired three contentious confirmations during the Trump administration, called one potential Biden nominee from his state “one of the most decent people I’ve ever met.” His comment surely reflects his own political considerations. It would be politically risky for him to oppose a widely admired jurist with strong support among his own constituents. But it is worth not dismissing what he said.

That kind of acknowledgment across the aisle is rare in Washington these days – and a kernel of hope that political patterns, however entrenched and embittered, can be reset.

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