The 58-42 vote for Judge Samuel Alito to be the 110th Supreme Court Justice could very well culminate in a detrimental change in the role and operation of the Supreme Court.

Progressives think that this is because Justice Alito will replace the so-called swing vote of moderate Justice Sandra Day 0’Connor. No, the risk is that the bitter partisanship associated with his confirmation could undermine the Court’s independence and authority.

In taking his oath of office, Justice Alito received a reward for years of accomplished legal scholarship. He and Mrs. Alito will understand why Judge Alito was rated well qualified unanimously by the ABA , why his clerks publicly advocated his confirmation, and why the members of the 3rd Circuit who served with him uniformly endorsed his integrity and judicial fitness. 

But will Judge Alito understand why he received fewer than 60 votes (including only 4 votes from Senate Democrats) or why a filibuster was attempted against him? Will he understand the necessity of charges that he was a closet bigot or worse? Will he accept as necessary the misuse of his judicial decisions and related smear attacks (which at one point caused his wife to leave the hearings in tears)? 

Let’s hope so.

For the past 20 years the Senate judicial confirmation process has become more and more dysfunctional. But now thanks to special interest groups like the People for the American Way and their handmaidens in the U.S. Senate like Senators Kerry and Kennedy, the smear attacks and personal assaults have escalated to the point that nominees increasingly see themselves more as battle-ready legal warriors rather than neutral, disinterested jurists.

It’s not simply that even with his distinguished record and legal acumen, Justice Alito received a staggering twenty-five or more votes fewer than Justices Breyer, Scalia, Stevens, Souter, Ginsburg, and Kennedy. It’s also not simply that Republicans ran the Senate when Justices Ginsburg and Breyer were easily confirmed. And it’s not simply that Alito’s judicial track record and writings were not any more controversial than those of Justices Ginsburg, Scalia or Stevens. It is that all of these facts and others combine to make his confirmation experience among the most partisan in a generation. And since the framers intended for national presidential elections to be the primary tool for influencing the make-up of the Supreme Court this change is both ahistorical and counter-productive.

While it would be impossible to eliminate any and all vestiges of partisanship in the confirmation process, today’s bruising and unduly intrusive partisan confirmation battles have gone entirely too far. Today they threaten to convert the Court’s members themselves into partisans; something our framers never intended.

Without suggesting that new members of Court may attempt to settle scores because of the unfair treatment they receive during the confirmation process, there is a real risk that if appointees come to see themselves as partisans—instead of independent representatives of the country as a whole—it could affect their behavior on the Court.
Consider: judicial appointees across the board are increasingly subjected to election style political campaigns including all of the associated fundraising, attack ads, political consultants and grassroots activity. Even lower court nominees face a confirmation process which would rival modern congressional campaign races or in the case of a few judges like Janice Rogers Brown even expensive Senate races. And tragically, the campaigns to fill vacancies on the Supreme Court today compete with the costs associated with a presidential primary race. 

Due to the heightened partisanship we’re witnessing the trend is likely to get much worse before it improves. Continued...