Presidential Commission on the Supreme Court of the United States
and have governed the appointments process in the past.[11] Critics of the treatment of the Garland nomination in particular emphasize that the Senate majority’s refusal to take any formal action at all on that nomination broke important new ground, departing from historical practice dating back to the nineteenth century. In addition, according to critics, the fact that Republicans were willing to act on Justice Barrett’s nomination just before the 2020 election undermines their claim that their refusal to consider Judge Garland’s nomination was motivated by the principle that Supreme Court vacancies ought not be filled in an election year. In response, defenders of the Senate majority point out that Judge Garland was nominated when the White House and the Senate were controlled by different political parties, while Justice Barrett was nominated when both institutions were controlled by the same party. More broadly, these defenders assert that the Senate majority’s actions during these two periods did not violate any well-established norms or disrupt any consistent historical practice. Over the course of American history, they note, Senate majorities periodically have declined to take up nominations in election years or have used the filibuster to deny a sitting President a confirmation, in order to reserve the choice for his successor.
Several witnesses who testified before or provided written submissions to the Commission observed that partisan conflict over nominations has occurred throughout the nation’s history, particularly in election years.[12] According to one witness, historically the Senate has confirmed nearly ninety percent of Supreme Court nominees when the President’s party is in power but “fewer than 60 percent of nominees under divided government.”[13] Similarly, the same witness observed that over eighty percent of nominees are confirmed when nominated “in the first three years of a presidential term,” but “barely more than half” when nominated “in the fourth (election) year.”[14] Nonetheless, most witnesses agreed that conflict has intensified in recent years. One witness cited the history of confirmations since the Reagan Administration as one of a “continuous cycle of escalation” of partisan conflict over nominations to both lower courts and the Supreme Court.[15] This escalation originates in the belief, held by both parties, that “the other side plays dirty and will manipulate the rules to its own advantage,” conferring on the party in power “a significant incentive to violate the current norms when it has the chance.”[16] The witness summarized the current state of affairs: “[E]ach side … believ[es], probably rightly, that the other side would do the same as soon as it had the chance. It’s a classic prisoner’s dilemma, and it operates according to its own logic.”[17] Another witness characterized this recent history as “decades of political circus.”[18]
The Commission also received a survey of a bipartisan group of former Senate staffers, including those who have served the current and former leadership of the Senate Judiciary
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