The Senate Judiciary Committee has begun hearings on Judge Amy Coney Barrett’s nomination to the U.S. Supreme Court. Some Senate Democrats contend the entire process is illegitimate or as Joe Biden alleges, “unconstitutional.” History tells a different story and offers a much different lesson than partisans will admit.

The Cato Institute’s Ilya Shapiro writes that public hearings on Supreme Court nominees were rarities until 1916, and a nominee did testify at a committee hearing until 1938.  But he also notes that political fights over court nominees were “as nasty in 1820 as it is in 2020.”

What has changed? The court has gradually become something it was never supposed to be – an agent of government power:

…the courts’ self‐​corruption, aiding and abetting the expansion of federal power, then shifting that power away from the people’s legislative representatives and toward executive branch administrative agencies. And the Supreme Court is also called upon to decide, often by a one‐​vote margin, massive social controversies, ranging from abortion and affirmative action to gun rights and same‐​sex marriage. The judiciary affects public policy more than it ever did—and those decisions increasingly turn on the party of the president who nominated the judge or justice.

So as the courts play more of a role in the political process, of course the judicial nomination and confirmation processes are going to be more fraught with partisan considerations.

The Supreme Court has become a type of super Congress and hyper executive – minus any real accountability, save for when new members of the most elite club in America are chosen. The more we demand of government, the greater the role the courts will play…and the more thoroughly political the nominations for court seats will become.

Image Credit: Joe Ravi [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons