What Does the Constitution Actually Say?
Today, the Supreme Court confirmation process feels less like a dignified job interview and more like a multi-million-dollar, scorched-earth political campaign. But it wasn’t supposed to be this way.
The process is remarkably straightforward on paper. The Constitution lays it out cleanly in Article II:
“He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.”
That’s it. Two branches. One nominee.
The Framers expected deliberation. They designed a system where the President picks and the Senate evaluates—not permanent campaigning over who sits on the bench.
But “advice and consent” leaves enormous room for interpretation. The Constitution doesn’t say the Senate must hold hearings. It doesn’t set a timeline. It doesn’t say a confirmation can’t happen during an election year. Those gray areas became battlegrounds.
At first glance, the confirmation process appears almost administrative: one branch nominates, another evaluates. But every Supreme Court vacancy has the potential to shape American law for decades. The justice confirmed today may still be deciding cases thirty years from now, affecting everything from elections and healthcare to free speech and religious liberty. That is why confirmation battles have become some of the most closely watched events in American politics.
Key Takeaway: The Constitution gives the President the power to nominate and the Senate the power to confirm. But it says almost nothing about how or when the Senate must act. That silence became the battlefield.
Were Confirmations Always This Political?
For most of American history, Supreme Court confirmations were relatively routine affairs that began to change as the Supreme Court increasingly found itself deciding some of the nation’s most divisive constitutional and social questions. As the Court’s influence expanded, every vacancy carried greater political significance.
1790s–1860s
🟢 Routine confirmations
Confirmed within days with little public debate.
│
Late 1800s
🟡 More scrutiny
Still largely bipartisan.
│
Mid-1900s
🔵 Qualifications mattered most
Broad bipartisan support remained the norm.
│
Late 1900s
🟠 Ideology grows
Votes become increasingly contentious.
│
2010s–Today
🔴 Confirmation Wars
Filibusters, blockades, rule changes, and near party-line votes become common.
These weren’t anomalies. Senators certainly disagreed with the nominees’ judicial philosophies, but the votes were overwhelmingly bipartisan because the baseline consensus was focused on qualification, not ideology.
Fun Fact: Justice Sandra Day O’Connor was confirmed unanimously (99–0) in 1981. Today, a unanimous Supreme Court confirmation is a political impossibility.
The Weaponization of the Rules (The Missing Turning Point)
Before understanding why the battles became so fierce, we have to look at how the rules were rewritten. For decades, a Senate minority could use the filibuster to block a Supreme Court nominee, effectively requiring 60 votes to secure a confirmation. This forced presidents to pick more consensus, moderate candidates.
That changed in a two-step structural meltdown:
- 2013: Democrats, frustrated by historic blockades on lower-court judicial nominees, used the “nuclear option” to lower the threshold to a simple majority (51 votes) for executive appointments and lower courts—but kept the 60-vote rule for the Supreme Court.
- 2017: Republicans extended the “nuclear option” to the Supreme Court to push through Neil Gorsuch.
Once the 60-vote consensus requirement was obliterated, the Senate only needed a bare partisan majority to seat a justice. Many of the bipartisan guardrails that had encouraged broader consensus were removed.
Why the Stakes Became So High
Here is the uncomfortable truth about modern American government: Congress often struggles to pass major legislation. When the legislative branch paralyzes itself, controversial national questions don’t just disappear. They move to the courts.
The more gridlocked Congress became, the more powerful the Court became by default. And the more powerful the Court became, the harder both parties fought to control who filled it.
When Congress struggles to resolve major national debates, the Supreme Court is increasingly asked to interpret the Constitution and decide the dispute.
As more high-profile issues reach the Court, every judicial vacancy becomes more politically significant.
The Garland Blockade (2016)
This is where the modern confirmation wars truly ignited into an all-out partisan freeze.
For nearly ten mon ths, a sitting president’s nominee received total silence.
Supporters of the Blockade Said…
Let voters decide: The presidential election was months away, so voters should have a say in the direction of the Court.
Lame-duck precedent: An outgoing president should not shape the Court for decades after leaving office.
Critics of the Blockade Argued…
The Constitution is clear: A sitting president has the power to nominate regardless of election proximity.
The Senate has a duty: “Advice and consent” implies an evaluation — not an outright refusal to engage.
Key Takeaway: The Garland blockade wasn’t about whether Garland was qualified. It was a raw exercise of political power—proving that if a Senate majority simply refuses to act, the Constitution provides no mechanism to force them.
Then Came Amy Coney Barrett (2020)
Four years later, the exact same Senate leadership faced a mirror-image scenario—and completely inverted the logic used in 2016.
Compare the mechanics of the two historic events:
Merrick Garland
2016
Days from nomination to result:
293 days
Election proximity:
About 8 months before Election Day
Senate stated reason:
“Let the voters decide.”
Party alignment:
Divided government — Democratic president, Republican Senate
Amy Coney Barrett
2020
Days from nomination to result:
38 days
Election proximity:
About 5 weeks before Election Day
Senate stated reason:
“Voters already decided by electing a GOP Senate.”
Party alignment:
Aligned government — Republican president, Republican Senate
Other Historical Confirmation Battles
The Garland and Barrett sequence is the most dramatic example, but it was built on decades of escalating hostility.
Between 1967 and 2020, the number of nominees confirmed with fewer than 55 votes skyrocketed. The trend is unmistakable:
Pattern: Confirmation battles did not become political wars overnight. The conflict escalated gradually as ideology, Senate rules, media attention, and party control became more tightly connected.
Why This Matters
Supreme Court justices serve for life. A single confirmation can shape American law for an entire generation, outlasting the presidents who nominated them and the senators who voted for them.
| A single confirmation permanently shapes… |
| ⚖️ Voting rights & election laws |
| 📢 Free speech & digital privacy standards |
| 🛡️ Second Amendment boundaries |
| 🌲 Environmental & corporate regulation |
Key Takeaway: Presidents serve four or eight years. Senators serve six. But a Supreme Court justice can easily serve thirty. The longest-lasting legacy of any presidency is almost never a piece of legislation—it’s the courts.
Why Americans Disagree
This debate cuts to the core of how different Americans understand the rule of law versus political fairness.
Some Americans Believe…
- The Senate has broad constitutional discretion to decide if and when hearings should occur.
- Elections should influence Supreme Court vacancies because voters deserve a voice in the Court’s future direction.
- If voters disagree with judicial outcomes, the proper remedy is to elect different presidents and senators.
⚖ Others Believe…
- The Senate has an institutional duty to evaluate every nominee, regardless of party.
- A sitting president retains full constitutional authority until the final day of the term.
- Public trust suffers when long-standing confirmation norms appear to change depending on which party controls the Senate.
The conflict isn’t about what the Constitution says—it’s about what fairness looks like. The document tells us what is legal; it does not tell us what is fair. The wide gap between those two ideals is where the confirmation wars are fought.
Frequently Asked Questions
Q: How long does a confirmation usually take?
It varies widely. Historically, it took days. In the modern era, the average is 70–90 days. Garland waited 293 days to be ignored; Barrett was rushed through in 38.
Q: Can the Senate simply refuse to consider a nominee?
Technically, yes. The Constitution mandates “advice and consent,” but it leaves the rules, timelines, and definition of “consent” entirely up to the Senate majority.
Q: Can a confirmed justice be removed?
Only through impeachment by the House and conviction by a two-thirds majority in the Senate. No Supreme Court justice has ever been successfully removed from office via impeachment.
Q: Did confirmations used to be more bipartisan?
Absolutely. Scalia (98–0) and Ginsburg (96–3) were legal polar opposites, yet passed with near-unanimous support. Since 2017, no Supreme Court confirmation has received more than 54 votes. While some earlier nominations were also contentious, confirmations by overwhelming bipartisan margins were much more common than they are today.
Bottom Line: The conflict isn’t about what the Constitution says—it’s about what fairness looks like. The Constitution tells us what is legally permissible. It does not always answer what Americans believe is institutionally fair. That tension lies at the heart of today’s confirmation wars.
Continue Learning
Coming Soon
How We Got Here: America’s Political Divide
The confirmation battles of today didn’t emerge overnight.
They were shaped by decades of political, cultural, and institutional change.
In our next series, we’ll explore the turning points that transformed American politics—from party realignment and the Southern Strategy to the rise of partisan media and modern polarization.
Check out the Supreme Court Series 1: Part 1: How Does The Supreme Work
