Recent Jackson Hearing Sparks Questions About Senate's Power of Advice and Consent

The United States government prides itself on the checks and balances between its three branches: executive, judiciary and legislative. One check that is particularly interesting is the Senate's responsibility of “advice and consent” which permits the U.S. Senate to review and ratify appointments made by the president. The original intent of this check was to ensure that appointees are appropriately qualified, especially Supreme Court Justices. However, within our current polarized political climate, senate members have been using advice and consent to stall time and attack their opposing party. It has been corrupted from its original purpose into a partisan tool which harms the efficiency of the federal government.

This started when Obama's nominee Merrick Garland was stonewalled by the Republicans in March of 2016. After this, the Supreme Court Justice hearings became more focused on the Democrat-Republican rivalry instead of the main purpose of advice and consent. Three specific examples of this are the hearings of Brett Kavanaugh and Amy Coney Bennett, both appointed by Donald Trump, and of Kentaiji Brown Jackson, appointed by Joe Biden. By analyzing their advice and consent proceedings, it is evident that both parties use this procedure to waste time and attack the other side.

Merrick Garland was nominated to the Supreme Court by Barack Obama after Antonin Scalia's death in 2016. However, an unprecedented blockade by a majority Republican Senate never allowed a hearing to occur. In the next year, Republican President Donald Trump was elected, appointing Neil Goroush to replace the vacant spot. This was seen as an abuse of power in the hands of the Republican majority. This action had nothing to do with Garland's credentials; in fact, many Republicans had praised him in the past. Evidently, the decision was made before Obama even announced his nomination. An NPR article reporting on the situation stated that “even before Obama had named Garland, and in fact only hours after Scalia's death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void.” By doing this, McConnell ignited the ripple-effect of advice and consent being used as a political game, one that would counter the entire purpose of the process.

In response to the stonewalling of Garland, the Democrats retorted during the hearing of Brett Kavanaugh in 2018. Before the hearing, the nominated Judge meets with the Senators to hear what they will be asked to prepare for the hearing. However in Kavanaugh’s case, the Democrats did not fully disclose what they were planning on addressing. Specifically they did not mention they were going to spend a majority of the time exploring a sexual assualt accusation from Kavanaugh’s high school years. Democrats used this accusation to their advantage to catch Kavanaugh off guard.

In addition, many Democratic senators expressed that they would vote against the upcoming candidate, even before his name was released. As reported by the Heritage Foundation, “Nearly two weeks before anyone knew the nominee’s name, Sens. Kamala Harris, D-Calif., and Mazie Hirono, D-Hawaii, had announced they would be in the negative column.” This is similar to how Mcconnell reacted to Garland, exhibiting how both parties are guilty of premeditated decision making. 

The Democrats continued their polarized behavior in the Amy Coney Barrett hearings in 2020. During her proceedings, Barrett was constantly questioned about President Donald Trump and her religious views instead of her qualifications as a judge.

During the hearing Sen. Cory Booker. Booker asked Barrett about her political stance on current controversial actions of Donald Trump. Barrett responded stating that as a judge she cannot weigh in on these issues. As stated in her testimony, “Well senator that seems to me to be pulling me in a little into this question that the president would not leave office and so to the extent that this is a political controversy right now as a judge I want to stay out of it.” After this response, Senator Booker still continued to ask for her opinion.

Barrett also had multiple senators probing her on how religion would affect her decisions as a judge. Specifically, Barrett was questioned on controversial topics that her religion conflicts with such as abortion and same-sex marriage. Barrett repeatedly stated, before and during her hearing, that she would “follow the law” and not allow her Catholicism to interfere with her work. However, Sen. Richard Blumethal and many others still continued to interrogate Barrett on her personal views. By doing this, these senators missed the point of these hearings. As a judge, Barrett’s opinion is inconsequential. Barrett states that her personal views wouldn’t conflict with her professional legal decisions, so they shouldn’t be explored in this hearing. The main purpose should be to ensure that Barrett understands separation of law and religion.

In addition to Democrats, Republicans are also guilty of abusing the advice and consent trials. The most recent example being Ketanji Jackson's hearing in 2022. In her proceeding, Republican senators addressed the Democrats as “the other side” and asked repetitive, incongruous questions.

The first example of senators misunderstanding the purpose of advice and consent is Sen. Josh Hawley. Hawley continually asked questions that Jackson had already answered from other senators. For the majority of the hearing Jackson was patient however her frustrations did emerge when she responded saying, “Senator, I’ve answered this question many times from many senators who have already asked me, so I’ll stand on what I’ve already said."

The second example of this is Ted Cruz's questioning. Cruz’s questions had little to do with Jackson's work as a judge. Instead, Senator Cruz took his time to quiz Jackson on Critical Race Theory in certain children's books. Although it may be politically relevant, it has very little to do with Jackson's work as a judge, which she addressed after he asked her these questions, “I have not reviewed any of those books, any of those ideas,” Jackson said. “They do not come up in my work as a judge, which I am, respectfully, here to address.” Jackson's response emphasizes the irrelevant nature of Cruz’s questions. Instead of testing Jackson on her qualifications as a judge, he was asking about critical race theory, which is a contentious topic that both parties disagree on. Therefore, it is evident that Cruz was using his questioning time to berate the left instead of focusing on the task at hand. 

The third and most telling example was Republican Lindsey Graham's questioning. He spent a majority of his time asking Jackson how she would feel if the Republicans treated her like Kavanaugh, asserting that “He was ambushed. Literally ambushed. How would you feel if we did that to you?” Other senators tried to step in, reminding Graham that Jackson had nothing to do with the Kavannuah hearings to which he responded, “I'm asking her how she may feel about what yall did.” Graham also questioned similarly about Barrett, “Would you find that offensive? I would if I were you, I found it offensive when they said that about Judge Barrett.” Although in both situations the Democratic party acted poorly, using a judiciary nomination hearing is not the right environment to address it. The questioning has nothing to do with Jackson. In addition, he used words such as “our side” and “the other side” which displays the polarized nature of his questioning.

Graham also mentioned Janice Rogers Brown, an African American justice that was “filibustered by the Democrats” for two years. Janice Rogers Brown's journey through the hearing process, no matter how unfair, has nothing to do with Jackson's qualifications as a judge. Graham even admits this story has nothing to do with Jackson by stating, “I want to comment on the last exchange. And judge this is not of your making so it's really not about you.” Yet after this comment, he still goes out of his way to address it.

From these examples it is obvious that advice and consent has been poisoned by politics. When it was first established, it was used strictly to judge nominations, regardless of political stance. However now, it has become another outlet for our two party system to incite unnecessary conflict. 

The consequences of this can also be seen numerically. According to a recent article by Duke Law, all Supreme Court hearings after 2010 have been twice as long, “The process for many appointees has slowed considerably, leading one commentator to write…’The data indicate that the entire nomination-and-confirmation process has generally taken almost twice as long for nominees after 1980 than for nominees in the previous eighty years.’”

This is not new. Justices are continually being used as pawns in a political game. Senators have ignored their duty of screening judges for concerns of impropriety and ineptness and instead they use their power to advance their political agenda. It has become abundantly obvious that these advice and consent hearings are no longer serving their purpose, and for this reason, change to the appointment process is necessary.