Scaros: Judicial Candidates Should Be Unanimously Confirmed


Over the past six congressional sessions, Democrats controlled both houses twice, Republicans twice, and the other two times the two major parties split control.

Since early 2011, Gallup has conducted 136 polls regarding Congress’ approval ratings. The highest score Congress achieved in all that time was 36 percent, compared to 61 percent disapproval (3 percent of respondents offered no opinion). In over 100 other instances, Congress failed to exceed even a measly 20 percent favorability rating, no matter which party was in control.

Month after month, year after year, the American public remains dissatisfied with its elected representatives on Capitol Hill, and more often than not throws out the baby with the bathwater. Which party’s in charge feels like a game of ping-pong.

Nowhere is Congress’ uncanny ability to turn its proceedings into a circus more evident than in Senate judicial confirmation hearings.

On Thursday, the Senate voted to confirm President Joe Biden’s first Supreme Court nominee, Judge Ketanji Brown Jackson, by the razor-thin margin of 53-47. The vote should have been 100-0 in favor. Not that I’m a particular fan of Jackson. While I’m hopeful that she’ll at least turn out to be more like her mentor, Justice Stephen Breyer, than as far left as Justice Sonia Sotomayor, I doubt she’ll ever be on par with the court’s premier adjudicators, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

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But what I think doesn’t matter. It’s not about what I want — it’s about what Biden wants.

To be clear, the Senate should never merely rubber-stamp a president’s nominee. A candidate who’s evidently corrupt or demonstrably unqualified should be rejected, as well as one who may exercise undue influence over the president or other government officials. However, the Senate should not reject a candidate simply on the basis of differing judicial and constitutional philosophies.

I strongly believe that justices should rule based on the plain meaning of the statutory text (the Antonin Scalia model), and in the case of uncertainty consider evidence of the legislators’ intent at the time the law was passed (the Clarence Thomas model). But my views are my views, and they’re not constitutional or unconstitutional just because someone says so.

There’s something known as “black letter law.” That is law that is essentially indisputable. For example, no person may serve as president of the United States other than a natural-born citizen who is at least 35 years old. Many of us believe that “natural-born” includes children born to U.S. citizens abroad, such as an American couple vacationing overseas. Others think such children are forever ineligible to become president. There is no objective “right” or “wrong” about that; it’s a matter of interpretation.

Should Jackson have been unanimously confirmed?

On the other hand, there’s absolutely no doubt as to what “35 years old” means. See the difference?

Of the 133 Supreme Court candidates who have gone before the Senate, 121 (over 90 percent) were approved. The last to be rejected was Judge Robert Bork, 35 years ago, 42-58. Fifty-two out of 54 Democrats voted against his confirmation because he differed with their constitutional interpretation of the right to privacy and they feared he’d overturn Roe v. Wade.

Whether abortion is constitutionally permissible or impermissible is an opinion. Ronald Reagan was president, he nominated Bork, and so Bork should have been confirmed 100-0.

Ideology aside, both major parties make utter fools of themselves when they pretend with certainty to be on the right side of reasonably debatable questions.

For instance, take the confirmation of Justice Brett Kavanaugh, who squeaked by with a 50-48 vote largely because of an uncorroborated accusation that he sexually assaulted a girl almost 40 years ago when both were underage. Kavanaugh vehemently denied the charge, but both versions of the story are plausible. Yet, magically, it seems that all 51 out of 51 Republicans believed Kavanaugh’s version, and 48 out of 49 Democrats did not.

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In Jackson’s case, Republicans pointed to a pattern of decisions in which she was overly lenient in sentencing child pornography convicts, implying she’s not sufficiently outraged by that practice. She argues that her views are quite mainstream. Again, there’s a case to be made on either side, yet every single Democrat believed her whereas all but three Republicans did not.

Democrats told us way back when that Bork would usher in an era in which black and white schoolchildren would again have to drink from separate water fountains, and Republicans now purport that with a soft touch like Jackson on the bench, child pornographers nationwide will be emboldened. No wonder congressional ratings are consistently in the toilet.

We have devolved into a nation of sore losers, and Congress is doing its darnedest to reflect that reality. The pattern has become familiar: Make it as difficult as possible for the opposite side, and don’t dare extend an olive branch and demonstrate bipartisanship lest you risk losing your seat.

Ever since Democrats started the modern-day practice of sabotaging a president’s pick by rejecting Bork — and thereby giving rise to the term “borking” — both parties have kept up the bad work. Thankfully, Kavanaugh and Jackson, among others, have survived attempted borkings.

Keep it up, Congress members, and every election or two, no matter which party you’re in, you’ll get thrown out with the bathwater yet again.

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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Constantinos E. (“Dino”) Scaros, JD, Ph.D., is a presidential historian, educator, attorney, newspaper editor and columnist, and political analyst. He is also the author of several books covering many contemporary issues, most recently "How to Talk Politics Without Arguing," "Trumped-Up Charges!" and "Stop Calling Them 'Immigrants.'" Follow him on his Facebook page: Listen to Dino.