An Excerpt from the Paperback Edition of My Book

Supreme Disorder is now updated to include the last two confirmation battles.

Last week, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court came out in paperback. The hardcover is still available—cheaper than before!—as are the original Audible, Kindle, and CD versions, but now you can read an edition that (a) has fewer typos and (b) is updated for developments since my manuscript went to press two years ago. You can also download, for free, an updated historical/statistical appendix of Supreme Court and lower-court nominations.

Below I provide an excerpt of the epilogue that I added, which takes us through April 2022 (after Justice Ketanji Brown Jackson’s confirmation but before the leak of the draft Dobbs opinion and end of term). For the first time, I’m cutting the post part way through to introduce my first paid-subscriber benefit. To get past that wall, you can pay the nominal fee—or, of course, buy the book! —IS

On September 18, 2020, four days before the hardcover version of this book came out, Justice Ruth Bader Ginsburg died, succumbing to metastatic pancreatic cancer. This was remarkable timing for a book on the politics of Supreme Court nominations, coming a mere 46 days before the 2020 presidential election and illustrating how accidents of fate affect the course of history. And it was a cataclysmic event in a nation already roiled by the COVID-19 pandemic—I submitted my original manuscript when we were in the midst of “two weeks to flatten the curve”—and thus even more polarized than during the fight for Justice Antonin Scalia’s seat four years earlier.

Justice Ginsburg’s was the second-closest death of a justice to a presidential election; only Chief Justice Roger Taney’s passing in October 1864, at another historically fraught time, was closer. President Lincoln waited until a month after that election to nominate Salmon P. Chase, in part because in those days it was hard to bring the Senate back into session, but also so as not to divide his cabinet and the Republican Party on the campaign trail.

Given a different set of political realities 150 years later, and a chance to cement a conservative majority on the Court, President Trump didn’t follow that example. The day after Justice Ginsburg’s death, he promised at a rally in North Carolina that “I will be putting forth a nominee next week. It will be a woman.”

Indeed, it would’ve been politically difficult to replace a feminist icon with a man, but unlike when President Reagan pledged to appoint the first female justice, Trump had a long bench of federal judges to choose from—most of whom he had himself appointed. Amy Coney Barrett, who had been short-listed for the nomination that went to Brett Kavanaugh, had now served on the Seventh Circuit for nearly three years and was the prohibitive front-runner. The other main contender was Barbara Lagoa, who had been serving on the Eleventh Circuit for less than a year after a well-regarded judicial tenure in Florida, including on the state supreme court. Beyond her professional background, many in the White House pushed Lagoa’s candidacy to shore up Trump’s electoral prospects in a key state.

But it was not to be, as Trump announced his nomination of Judge Barrett in a Rose Garden ceremony on September 26. When Barrett came before the microphone to make her official introduction to the wider public, she immediately came across as a different sort of nominee than Trump’s previous two picks. This wasn’t polished civics instructor Neil Gorsuch or earnest political operator Brett Kavanaugh. Here was a joyous, American‐​as‐​apple‐​pie judge next door. Once past the social-media smears about Barrett’s religion—as some would have it, she belongs to a cult of handmaids whose husbands force them to be judges, and had to settle for serving on the Supreme Court because of a lack of abortion access—the public found a genuine and warm person who also happens to be one of the finest lawyers in the land.

“I love the United States, and I love the United States Constitution,” she said on that Saturday afternoon at the White House. “If confirmed, I would not assume that role for the sake of those in my own circle and certainly not for my own sake. I would assume this role to serve you.” What a breath of fresh air amid the 2020 miasma, charming casual observers and disarming critics in a gracious performance that continued into her confirmation hearings.

But, as has become the norm, the battle over this vacancy was about more than the nominee’s own suitability. Beyond perfunctory criticisms of Barrett’s conservatism and how she was picked to shield the president from legal inquiry—which would’ve been levied against any Trump nominee—Democrats raised a couple of process objections. First, now only 38 days before the election, it was impossible to conduct a Senate review that would be anything but superficial and rushed. And second, an attempt to nevertheless ram Barrett through would be hypocritical given that Republicans blocked consideration of any nominee when Justice Scalia died nearly nine months before the 2016 election. Democrats and the media also pointed to Justice Ginsburg’s dying wish that she “not be replaced until a new president is installed.”

In theory, there was plenty of time to confirm Barrett before the election; the average period between nomination and confirmation historically was 23 days. But the modern era is qualitatively different from what came before. Until 1968, the average number of days from a nomination’s being received in the Senate through confirmation was 16. Since then, it’s been 61. It took only 17 days to confirm Warren Burger in 1969 and 19 days for John Paul Stevens in 1975, but there’s been a rapid upward trajectory. Sandra Day O’Connor’s confirmation in 1981 took 33 days—the number Republicans focused on—but since then nobody had taken fewer than Ginsburg’s own 42 days in 1993. (That’s not counting John Roberts, who was confirmed as chief justice in 23 days after having already been pending as an associate-justice nominee for 39 days.)

Moreover, the latest confirmation in a presidential election year had come in July 1892. President Eisenhower had recess-appointed William Brennan in October 1956, but that wasn’t an option for President Trump. Senate Majority Leader Mitch McConnell (R-Ky.) explained that the main, and crucial, difference from 2016 was that in 2020 the government was united, with voters having expanded the Republicans’ Senate majority in 2018. That wrinkle is historically significant, but its ability to convince tracked partisan lean.