How did the modern Supreme Court confirmation hearing become ‘a political showcase’? Look back to the 1980s

Confirmation hearings for Ketanji Brown Jackson are underway in the Senate Judiciary Committee today. The Harvard-trained judge with some ties to the Boston area is nominated to take the seat on the Supreme Court soon to be vacated by Justice Stephen Breyer. To be confirmed, Jackson will only need a simple majority vote, but that's a relatively new change. Daniel Medwed, Northeastern University law professor and GBH News legal analyst joined Morning Edition hosts Paris Alston and Jeremy Siegel to talk about the process and its history. This transcript has been edited for clarity and length.

Paris Alston: So Daniel, explain this simple majority and how the requirement around it has changed.

Daniel Medwed: So nowadays, for all federal judicial nominees and federal cabinet secretaries, the Senate just needs a bare majority, 50-plus votes, that might include in this instance, Kamala Harris coming down to Capitol Hill to cast the decisive 51st vote if in fact, it's deadlocked 50-50. Prior to that, for many years, the traditional rule was a 60-vote supermajority rule, and that was a reflection on the one hand of the idea that you need to have a safeguard, a check on the political party in power having extreme elements occupy these position— that there has to be some bipartisan buy-in for important posts.

On the other hand, as our political discourse got so frayed and polarization became routine, it just created gridlock, no one could get anyone through and there were lots of appointments sort of backed up in the process. So about 20 years ago, in 2003, Republicans began to talk about what former Senator Trent Lott called the "nuclear option." That's a term that's actually stuck. And the idea was that the Senate could just change its own rules. This isn't a constitutional provision. They could just change the rules and drop down from 60 to a bare majority. Republicans at the time didn't do anything about it, Paris, in part because they did well in the 2004 election and the gridlock eased. But when Obama came to power and Democrats were in control of the Senate, the gridlock resumed.

So in 2013, under Harry Reid's leadership, the Senate did use this option to get rid of the supermajority 60 vote rule — but just for lower court federal judges and cabinet secretaries. That's how things stood for another four years until the Trump administration started to have some trouble getting Neil Gorsuch through the finish line for the Supreme Court position vacated by the death of Antonin Scalia after the whole mess with Merrick Garland. So at that point, the nuclear option was used one last time, and the rule is now just a bare majority for all federal judicial nominees, including Supreme Court justices.

Jeremy Siegel: So this is all a lot of twists and turns and recent history, but it's kind of interesting, you looked back to the '80s with the nomination of a man named Robert Bork. Tell us a little bit about that case and the history behind it and how it fits in here.

Medwed: You know, we can go back even further. Instead of starting in 2003, let's go back to the mid-'80s. So in a sense, the decline of the supermajority rule has its origins in the modern, contentious nature of these confirmation hearings — this idea that everyone's watching. And it becomes sort of a political showcase.

And a lot of that really started in 1987, when President Reagan nominated a very controversial federal judge, Robert Bork, for a position vacated by Lewis Powell on the court. And Bork had a very problematic record on civil rights. And he also had an alleged role in the Watergate scandal. So he went down in flames during his confirmation hearing. He was rejected. And Reagan had to try two other people before eventually a moderate, Anthony Kennedy, who was a swing vote for many years on the court, got the nod. A lot of people could trace the end of this supermajority rule to that moment when people were paying attention, and this idea of people necessarily not getting through became a reality.

Alston: So, Daniel, we know that today and Wednesday are going to really be where the action is. How is the questioning going to play?

Medwed: The chair of the Senate Judiciary Committee is Dick Durbin, a Democratic senator from Illinois. He set up two rounds of questions. Today, each of the 22 members of the Senate Judiciary Committee, they'll have 30 minutes to ask questions of Judge Jackson. And then after the end of that round, the second round of rebuttal questions will be 20 minutes apiece. So we're looking at about 18, 19 hours of questions for Judge Jackson over the next two days. I think it'll be pretty grueling.