Amy Coney Barrett seems headed for confirmation to the Supreme Court, and I’m very much among those celebrating. But everyone across the political spectrum knows that something has gone deeply wrong with this process. For decades now the Senate has been rejecting well-qualified judicial nominees, from Robert Bork to Merrick Garland, for ideological reasons. “Court-packing” is even in the headlines again, however unlikely it remains.
Cato Institute legal scholar Ilya Shapiro has thus picked a fortuitous time to release his new book, Supreme Disorder. It provides the full history of Supreme Court confirmations and evaluates proposals for reform. Court-watchers owe it to themselves to give it a read.
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Under the Constitution, the president nominates Supreme Court justices, but the Senate must “consent” to them. Presidents and senators are politicians, so politics has played a role in the process from the beginning.
Shapiro acknowledges as much, noting “the judicial battles of Adams and Jefferson, with the Midnight Judges Act — the original court-packing — as well as Jefferson’s failed attempts to appoint justices to counter the great Federalist John Marshall.” Early presidents also sought to balance the Court geographically and reward their cronies with appointments. Later on, Teddy Roosevelt and William Howard Taft sought to divine potential justices’ “real” politics, looking for progressive and conservative jurists respectively regardless of their party.