confirmed, will be young enough to serve for many decades. In short, political actors now perceive the stakes of each nomination to be exceedingly high, especially if confirmation is seen as likely to lead to an immediate shift in the balance of power between Court “liberals” and “conservatives.”
As witness testimony before the Commission suggested, the struggles over the confirmation process appear likely to persist, if not intensify. One witness testified that the partisan escalation of recent years may lead future Senate majorities to decline to take up any nomination from a President of the opposing party at any time at all, not just in the last year of the President’s term.[22] At various times and to different degrees, party leaders have expressed a readiness to resort to these kinds of tactics as a matter of course. In 2021, Republican Leader Mitch McConnell stated that if his party won a majority in the Senate in the 2022 midterm elections, he would not commit to acting on any Supreme Court nomination by President Biden in 2023 and indicated that it was “highly unlikely” he would agree to any such consideration in the 2024 presidential election year.[23] In 2007, Senator Chuck Schumer, then a member of the Senate Democratic leadership and now the Senate Majority Leader, observed in a speech that, for the eighteen months remaining in George W. Bush’s presidency, “[w]e should reverse the presumption of confirmation.”[24] He set the nomination of a “moderate” as a condition of confirmation, asserting that “the Supreme Court is dangerously out of balance” and that a Bush nomination should not be confirmed “except in extraordinary circumstances.”[25] Defenders of recent Republican actions point to these statements as evidence that both sides have engaged or have been prepared to engage in similar practices. They therefore contend that Republicans cannot fairly be charged with breaching any established norms. Critics of the Republicans’ approach see a distinction between Senator McConnell’s and Senator Schumer’s respective statements. They view it as improper for the Senate simply to refuse to consider a President’s nominees, but claim it is different, and appropriate, for a Senate majority that is not aligned with the President to insist that the President’s nominees be relatively moderate. Of course, what it means for a nominee to be “moderate,” and whether any given nominee is accurately described as such, are often matters of significant disagreement.
B. The Stakes of the Reform Debate
The Court reform debate is not merely a byproduct of recent partisan conflict. Rather, it is a high-stakes debate because of the unique role and structure of the Supreme Court. The Court’s decisions have extraordinary impact on the lives of Americans generally. The Court also exercises enormous power within the U.S. system of government, as do the individual
