Season 2, Episode 5 | Judicial Confirmations—Checks, Balances, or Political Theater?

A Supreme Court justice serves for life, no term limits. No reelection. Almost no way to remove them. So… who decides who gets that kind of power?

In this episode, hosts Savannah Eccles Johnston and Matthew Brogdon explore the constitutional design, evolution, and growing controversy of judicial confirmations. From the first public hearing 1916 to today’s highly publicized nomination battles, they unpack how these confirmations have transformed from quiet votes to political showdowns.

The conversation ranges from history to process to philosophy—covering why lifetime judicial appointments raise the stakes, how public hearings shape political narratives, and why the Supreme Court has become such a powerful player in our democracy.

Whether you're a court watcher or a civic nerd, this episode offers insights into the tensions, strategies, and consequences of placing judges on the highest bench in the land. Let’s dive in!

In This Episode

• (00:00:00)  Introduction to judicial confirmations  
• (00:00:30)  Constitutional requirement for Senate consent  
• (00:01:24)  Historical context of confirmation hearings  
• (00:02:27)  Judicial independence and impeachment  
• (00:04:25)  Checks and balances in the confirmation process  
• (00:06:01)  Limitations of Senate confirmation  
• (00:08:48)  Congressional control over judiciary  
• (00:10:14)  Lengthy confirmation processes  
• (00:12:24)  Judicial confirmation process explained  
• (00:13:31)  Evolution of confirmation norms  
• (00:16:05)  Qualifications for Supreme Court justices  
• (00:17:29)  Politics in the nomination process  
• (00:18:37)  Partisanship in judicial confirmations  
• (00:19:11)  Historical context of confirmation battles  
• (00:20:04)  Consequences of judicial confirmations  
• (00:21:48)  Judicial philosophy debates  
• (00:25:31)  Public nature of confirmation hearings  
• (00:26:42)  Streamlining the confirmation process  
• (00:28:28)  Youth of recent nominees  
• (00:28:56)  Making the Supreme Court less important 

Notable Quotes

• [00:02:07] "The stakes are much higher here than for executive confirmations because members of the judiciary serve for life, and the only way to get rid of them is an extremely costly process of impeachment." — Savannah Eccles Johnston
• [00:07:42] "You really can't control them. They serve for life once they are appointed. These are unelected gods on Mount Olympus. They can kind of do a lot of things, and you can't punish them a whole lot outside of impeachment." — Savannah Eccles Johnston
• [00:05:24] "The biggest engine of change in American constitutional law, if you want to change the law, you change the judges. That happens through judicial appointments in our system." — Matthew Brogdon
• [00:21:48] "What is it about a change in constitutional law? That’s a new thing. It’s a fight over judicial philosophy. Maybe that is new. I’m not sure if it is, but I’ve heard arguments that what is new isn’t partisanship; it’s the rift in judicial philosophy." — Savannah Eccles Johnston
• [00:20:04] "What matters for whether a particular confirmation battle is contentious is its consequences. What’s at stake in that confirmation? If there’s not much at stake, nobody’s going to expend tons of political capital fighting over somebody who’s not going to change the way the law works." — Matthew Brogdon
• [00:26:47] "I would get rid of public hearings in a hot minute. Public confirmation hearings are just not helpful. The public aspect of it is the most time-consuming, the most contentious, and the least productive of it all." —

Transcript

00:00:03 Narrator

We the People, do ordain and establish this Constitution. 

00:00:10 Savannah Eccles Johnston 

Welcome to This Constitution. My name is Savannah Eccles Johnston. 

00:00:13 Matthew Brogdon 

And I'm Matthew Brogdon. 

00:00:12 Savannah Eccles Johnston 

And today we're looking at confirmations again, but this time, confirmations for judicial nominations. And this one is a completely different beast than executive nominations. Why again, why require the advice and consent of the Senate for judicial confirmations? These aren't members of the president's cabinet. This is a third branch. Why is the Senate involved in this? 

00:00:40 Matthew Brogdon 

Well, you used the term quality control in the last episode we used, and you could double-down on that here. There's actually quite a bit of debate in the Constitutional Convention about whether they ought to do this. And to be clear, it is required in the Constitution. This is unlike with executive officers, where Congress can take some offices and make them, you know, sort of absolve the Senate of the requirement to do confirmations. With all judges, the Constitution requires that the Senate confirm. The president nominates, Senate confirms, gives its advice and consent, so the Framers are making a deliberate choice to require this with judges. And it's interesting because there's a there's a funny debate in the Convention about this because some people argue, like, well, do you really need the Senate to participate in this? In fact, some people said, well, maybe the executive shouldn't be involved. We should just let Congress appoint the judges or let the Senate appoint the judges. So there's a lot of debate about this. But in the end, one thing that was very clear in that whole debate was that the whole point is just to make sure you don't get a bad egg on the bench. 

00:01:47 Savannah Eccles Johnston 

Right, and the stakes are much higher here than for executive confirmations. Because unlike what Smith from South Carolina wanted or whatever in the First Congress, executive nominees do not serve for life. But members of the judiciary do. They serve for life, and the only way to get rid of them is an extremely costly process of impeachment. And to make matters worse, you're appointing younger and younger judges these days, and the lifespan is increasing. So this is a costly quality-control moment. 

00:02:18 Matthew Brogdon 

Yeah, the stakes are pretty high, which makes it surprising that early on, actually, the Senate didn't do a whole lot of work with confirmation. In fact, there would be sort of closed-door hearings in the 19th century to some extent. The first time that the Senate ever held a public hearing about a judicial nominee was actually for Justice Louis Brandeis in 1916. 

00:02:44 Savannah Eccles Johnston 

OK. 

00:02:46 Matthew Brogdon 

It's still one of the longest confirmation fights in our history. But Brandeis was controversial. He was a progressive, he was Jewish, it was 1916. But that was the very first time there had never been a public hearing on a judicial nominee before that in the republic. 

00:03:01 Savannah Eccles Johnston  

But he wasn't there in person. They didn't invite him in person, right? 

00:03:02 Matthew Brogdon  

No, no. The first person to show up in person is Stone, Harlan Fiske Stone in 1925. So like 9 years later, Stone shows up in person to testify at a hearing, but that was a one-off. That didn't really happen. And that happens periodically. That doesn't become a regular practice until 1949. Actually, Eisenhower's appointees starting with Clark show up to testify at their own confirmation hearings, and that's been the universal practice ever since. So this whole, you know, circus of a nominee showing up to testify in front of a congressional committee, and the committee gets to grill them is something we've done since 1949 and did not commonly do before that. So that's a relatively new practice.

00:03:52 Savannah Eccles Johnston   

Right. 

00:03:55 Matthew Brogdon 

Now we've been appointing judges since 1790, but, you know. 

00:03:57 Savannah Eccles Johnston    

But now it's very public. The question to put this in context of this checks-and-balances season, is this a check on the judiciary, on the executive or on both? 

00:04:09 Matthew Brogdon

Hmm. Yeah, that's an interesting question. I mean, in some sense as a check on the executives, if you win elections long enough, you get to control the composition of the bench. So the biggest engine of change in American constitutional law, if you want to change the law, you change the judges. 

00:04:26 Savannah Eccles Johnston     

Right. 

00:04:27 Matthew Brogdon 

That happens through judicial appointment in our system. So I mean that's that's a sort of critical element. That means that if the president gets to do this by himself and Congress doesn't have a role. Then the president's exercising that power, and in that sense this is a check on the president's ability to shape the direction of the law by shaping who holds office on the bench. 

00:04:54 Savannah Eccles Johnston      

Right, this is one reason I like this specific checks and balance because it goes all three ways. 

00:04:59 Matthew Brogdon  

So it's clear how Senate confirmation is a check on the executive and just putting in judges they like. But how is it a check on the judiciary? I guess. 

00:05:11 Savannah Eccles Johnston       

Yeah, it doesn't seem to be a massive check. It's a one time kind of gut-reaction check on a yes or no. Kind of controlling what the judiciary will look like. I think this is interesting because I do ask them a lot of questions about precedent about the role of the Supreme Court and policy creation. So it does feel like something of a safeguard for legislative powers from judicial hands. But again, it's just it's just a confirmation hearing. You have no control over this person other than impeachment. 

00:05:40 Matthew Brogdon 

That's right. Yeah. I mean, this is one of those weird things. This actually happened at the Constitutional Convention because people kept talking about appointment, and they’re talking about who should appoint judges. Different delegates kept talking about it in terms of controlling judges. And actually, there's this really sort of hilarious set of exchanges with Ben Franklin, where he kind of points out to the delegates, like, this is not what appointment or confirmation are for. You can't control someone by appointing them. You can only control someone and you can fire them. So impeachment is a real control, and we'll talk about impeachment later. So impeachment, very clearly a check on the judiciary. The confirmation process is a little bit of a check in the sense you can prevent certain people from getting in, but you really can't exert any control over what anyone does in office, subsequently, through the confirmation power. So in that sense, it's kind of weak sauce and really is, I think, principally aimed at the executive to make sure the executive is not sort of doing this unilaterally or using this to exercise undue influence. 

00:06:47 Savannah Eccles Johnston        

But this does get to the heart of something that I think nags at both the executive and the legislature about the judiciary. And that is you really can't control them. They serve for life. Once they're appointed it. These are unelected gods on Mount Olympus. They could kind of do a lot of things, and you can't punish them a whole lot, outside of impeachment. And in a democratic system, there is something both necessary and kind of jarring about that. 

00:07:16 Matthew Brogdon 

Yeah, I mean, the Framers use the term independence and independent judges and independent judiciary, although it's true to say we have extraordinarily independent judges. But the courts as a whole, the institution of the judiciary, actually is subject to some control and oversight. So I mean, Congress can constrain what courts can do, can starve them of resources and constrain the way they function and do other such things. But the individual judges themselves are extraordinarily independent. So we have highly independent judges in a fairly independent judiciary. 

00:07:53 Savannah Eccles Johnston        

Right. Well, give another example of kind of fairly independent the number of judges on the Supreme Court is completely up to Congress. It's fluctuated throughout our history, and the very existence of the appeals and district courts is up to the creation of Congress. Only the Supreme Court has to exist. So you're right, there is kind of this interesting tension between very independent judges, you know. 

00:08:14 Matthew Brogdon 

I mean, mostly anytime Congress gets really carried away, it is important that there's usually a very powerful argument on the other side of someone going, hold on a minute. You can't go that far. So technically, Congress would say we can do what we want. We can get rid of courts, we can make them as big as we want, as small as we want and take their jurisdiction away. In practice, there's there's some powerful arguments on the other side, and those usually prevail to keep Congress from doing everything it would like to do to sort of scale that back. 

00:08:44 Savannah Eccles Johnston        

Well, and to allow the judiciary to remain a co-equal and competitive branch of government. Yeah. 

00:08:50 Matthew Brogdon 

We talked about… When we talked about executive confirmations, we talked about these things sort of getting drawn out and lengthy confirmation processes are very recent thing for executive confirmations. They're also a pretty recent thing for judicial confirmations, especially the Supreme Court justices. These usually surprise people. The numbers on this sort of stuff. 

00:09:12 Savannah Eccles Johnston

Let’s hear it.

00:09:13 Matthew Brogdon 

So... And we'll just confine ourselves to the 20th century like, since 1900. So this is not even getting back into ancient history in the early republic. Just since 1900, right? There's, you know, we've had like 40, I guess this would now be, you know, 47 successful confirmations, the 47 Supreme Court justices have been successfully confirmed. Out of those, in terms of the time it took, three of them were confirmed and one day or less.

00:09:48 Savannah Eccles Johnston 

Wow, that's amazing. 

00:09:49 Matthew Brogdon 

That is, on the same day that the president nominated them, the Senate confirmed them. So that's exceptional and important. Well, it's not exceptional. It's important because of course, in President Trump's first term in office. Then he appointed Amy Coney Barrett. 

She was quite famously confirmed in less than a month. I think it was, like, 27 days or something like that. And at the time, in particular, Joe Biden, I remember at the time, actually said this is unprecedented, that that you would confirm someone this fast. And actually that was a true statement for the roughly 40 years just before Barrett was confirmed. But for the rest of the 20th century. Not exceptional at all. In fact, from 1900 up to 1981, up until Reagan's presidency, the median number of days it took to confirm a Supreme Court appointee was 17 days. 

00:10:49 Savannah Eccles Johnston 

Wow, that’s quick!

00:10:50 Matthew Brogdon  

That was the norm. 17 days, 2 1/2 weeks from the time the president identified a nominee until the Senate confirmed them. So a very rapid process. And of course, we already pointed out, for some of that time, there weren't actually hearings. But even after we started hearings, it still tended to be pretty quick. There was not this kind of like, months- long hand-wringing over the nominee and sort of dragging it all out. Interestingly, there were 19 occasions where it took 10 days or less. 

00:11:21 Savannah Eccles Johnston 

Let's explain what has to happen in those ten days, because that's pretty quick for a turn around. So not only do you have, once you start having public hearings, you have public hearings in the judiciary committe. And this is after you've had a president actually nominate someone. You've had the background checks, you've had, the questionnaires submitted, you've had the ethics, you've had all the things. Finally got into a hearing. Then you get a committee vote, and then you need to get it on the executive calendar of the Senate. And then you have to get it, until 2017, past the filibuster. Again, the 60 vote filibuster to even end debate and get a final vote on a Supreme Court Justice. So the fact that they could do this and under 10 days, it's fairly impressive. Now, as of 2017, the filibuster has been lowered down or cloture rules have been lowered down to simple majority. It's a nuclear option. So now basically the bare majority can confirm any Supreme Court justice, but still, these are lengthy processes that need to happen, which means that the Senate wasn't messing around. 

00:12:21 Matthew Brogdon   

Well, in some cases there were no hear… I mean the three that happened on the same day are of course, all members of Congress who were appointed to the court, and the Senate actually had an understanding. A sort of a norm that if a member of the Senate was appointed to the federal bench, there would actually be no hearings. They just give them an up-or-down vote because it was a is a courtesy afforded to their own members. So it's really fascinating set of conventions operating. Of course, this doesn't happen anymore. Because we, you know, the whole idea that we would take Cabinet secretaries or members of Congress and put them on the Supreme Court. Not the way this works anymore and now we have a highly professionalized process. Unless you've served on an appellate court. In fact, unless you spent most of your career in the federal judiciary or in senior state court, you probably stand no real chance of a Supreme Court appointment, certainly. But even federal court appointments are getting to be very sort of... highly marked by the set of rigid qualifications. 

00:13:30 Savannah Eccles Johnston  

Right. So you wouldn't have a Taft today becoming a justice on the Supreme Court? 

00:13:31 Matthew Brogdon   

Yeah. Well, I… 

00:13:36 Savannah Eccles Johnston   

Although there was some talk…

00:13:37 Matthew Brogdon 

Don't get me off on Taft. 

00:13:38 Savannah Eccles Johnston   

 OK, sorry. 

00:13:39 Matthew Brogdon    

But I know… that's a good point. Taft had been president, making president a Supreme Court justice. He had been a federal judge before he was president, though. 

00:13:48 Savannah Eccles Johnston    

Oh, I didn’t know that.

00:13:48 Matthew Brogdon     

Taft started out his career as a federal judge, then left and went into executive politics, became Secretary of the Navy and then vice president and then president. He was actually offered a Supreme Court appointment as an associate justice that he turned down because he wanted to be Chief Justice. 

00:14:06 Savannah Eccles Johnston

This guy did everything. He did all the things in government. 

00:14:09 Matthew Brogdon      

He did, and most of them really quite competently, but being competent is not really a good… a recommendation for being a great president. 

00:14:16 Savannah Eccles Johnston 

But you know, now I feel really bad because when I tell my students about Taft, I just say remember the fat guy that I feel like I really undermine his impressive qualifications. 

00:14:26 Matthew Brogdon 

He was a big man, but he wasn't, like, you know, he actually played golf every day whenever he was president. Did you know that? 

00:14:32 Savannah Eccles Johnston  

Golf is not a sport. It doesn't count. It's not exercise. 

00:14:37 Matthew Brogdon 

Well, they didn't have golf carts then, either. They call that you had to lug your clubs around 18 holes. So…

00:14:42 Savannah Eccles Johnston 

Oh, OK, fine. All right, so back to this this process. By the way, we we mentioned, why is it possible for Taft, even if he hadn't been on the federal judiciary, it doesn't actually matter. There are no qualifications for the Supreme Court listed out in the US Constitution.

00:14:56 Matthew Brogdon 

Zero. Zero. Nothing. 

00:14:58 Savannah Eccles Johnston 

So I could be on the Supreme Court tomorrow—technically. One of my children could be. Right. 

00:15:00 Matthew Brogdon 

One of your children could be. There are no age qualifications there, and I sometimes tell students a president could nominate a minor from a foreign country to be a Supreme Court justice. And if the Senate's willing to confirm them. They shall be a member of the Supreme Court. 

00:15:19 Savannah Eccles Johnston  

For life. But this brings us to actually a really important point, which is all of the qualifications for the judiciary, all the qualifications the Senate uses for this confirmation process are made up. We've come up with these qualifications, so they've really had to create a structure to decide who can and cannot handle this position. 

00:15:39 Matthew Brogdon  

Which contrasts with states which tend to have qualifications like Utah, where we are has actually like a commission that that it sort of, you know, studies the nominees tells you if they're qualified, there's a whole... 

00:15:53 Savannah Eccles Johnston  

Right. We don't do that at the national level, which begs the question, does politics then determine how the nomination process goes? And we have this idea that politics and the confirmation process is a new thing. It's not. Politics in the judicial-nomination space has been there from the very beginning. See the midnight justices as an example. But just to give some numbers on this, the Senate rejected a full 1/3 of all Supreme Court nominees in the 19th century. 

00:16:23 Matthew Brogdon 

But did so quickly. They didn't waste their time. 

00:16:24 Savannah Eccles Johnston  

Right. But you know, and then people will say, Oh, Bork was really the first partisan reject. No. You can see back in the 1930s, say, a nominee named Parker is rejected for his opposition at the time to increasing access for black citizens to vote between 1968 and 1972, four out of every 10 nominees was rejected, so by the time we get to Bork in the 1980s, we are well primed on kind of partisan fights. You already mentioned Brandeis earlier. We are primed for partisan fights over nominations. The real question is, has it changed? Is there something different today about the kind of questions being asked or the kind of divisions? It doesn't seem to be just purely Republican, Democrat. How is partisan politics involved today with confirming Supreme Court justices? 

00:17:22 Matthew Brogdon 

So I mean, partisanship is pretty vividly on display in a lot of these things. People speculate about this. I don't think there's a consensus about why confirmation fights for judges have been more contentious because that's really what we're talking about. Senate’s always rejected people for partisan reasons. But did they drag them out in public and have a two-month debate about it and dragged them through the mud? And, you know, with their millions spent on PR campaigns about it, you know, one simple answer is that for any number of reasons, Supreme Court appointments just become more important. The stakes are a lot higher. Some of it's historical accident. When we think of contentious confirmation battles, we tend to think of confirmations of justices who are going to somehow shift what's happening on the court. 

00:18:10 Savannah Eccles Johnston  

Right. 

00:18:11 Matthew Brogdon 

That's not always the case, right? You know when Ginsburg was appointed to the court? It was not terribly contentious. People didn't love the fact that she had been the ACLU's lawyer. That was pretty political. On the other hand, it wasn't really going to move the court significantly. It wasn't going to change in some tectonic way. Constitutional law, so a lot of senators who didn't particularly like her still just voted yes. I think Scalia was confirmed like 96 to three or something like that. I mean, it was a massive… So it really matters… What matters for whether a particular confirmation battle is contentious is its consequences. What's at stake in that confirmation? And if there's not much at stake, nobody's going to expend tons of political capital fighting over somebody who's not going to change the way the law works. So you really to know… You can't... So it's actually impossible to say, Oh, now judicial confirmations are so much more controversial. It used to be, well, which? Are we talking about Scalia? That actually wasn't controversial, right? Are we talking about, you know, what Merrick Garland… Poor Merrick Garland never even got a hearing, right? 

00:19:34 Savannah Eccles Johnston 

The confirmation that never happened. 

00:19:35 Matthew Brogdon 

Right. The confirmation that never happened. So you really have to ask which one, what moment are we living in? I find the most compelling account to actually come from, you know, the folks who look at this in a historical lens and say, well, we can't really generalize too much how this works, because we have to consider the moment we're in. The fact is we have been in a political moment that quite peculiarly has involved a lot of confirmations that might shift the Court. That's not usually the case. Most replacements of judges in American history don't involve potentially changing the way constitutional law works because of one person getting confirmed. 

00:20:20 Savannah Eccles Johnston  

We should speak to this point. What is it about a change in constitutional law? That that's a new thing. It's a fight over judicial philosophy. Maybe that is new. I'm not sure if it is, but there's… I've heard arguments that what is new isn't partisanship. It's the rift in judicial philosophy. It's the rift in how to interpret the U.S. Constitution. And therefore, those big swings really matter, because if you flip from 4–5 to 5–4 the other direction, you get to reinterpret the U.S. Constitution. What do you say to that? Are you convinced that judicial philosophy is really more starkly divided than it was, for example, with Brandeis? 

00:20:56 Matthew Brogdon 

I mean, there clearly were things at stake with Brandeis. I mean it. It would be weird to point to the Progressive Era and say, you know, it was nice back then before we did, you know, like, fought over judicial philosophy. It was the Lochner era, when, you know, half the judges in the country were pointing the finger at the other half. The judges in the country and saying you're legislating laissez faire economics from the bench, right? You know, and the other half are pointing and going, Yeah, but that's what the Constitution says. So I don't think that's new. I certainly the sort of hypertheorizing constitutional interpretation, we're sort of camps of, you know, sort of original understanding originalism and, you know, living constitutionalism and different stripes of it. We even have living originalism. We have, you know, there's a whole, you know, a whole set of different approaches that try to really give scholarly rigor and methodological rigor to how we interpret these things. That's somewhat new, but we have always fought over jurisprudence. I actually like the term jurisprudence, which means that what's the mode of interpretation. What are the judicial reasons you use to reach a result and understand what the law means in a particular case? That's jurisprudence. We've always had massive divides over jurisprudence on the Taney court. It was, should we employ the jurisprudence of the Court to read the assumptions of slaveholders into the text of the Constitution? 

00:22:23 Savannah Eccles Johnston   

Right. 

00:22:23 Matthew Brogdon 

Or should we read the Constitution in the light of the Declaration of Independence, which seems to be, you know, hostile to slavery. That was a serious jurisprudential debate. We didn't have law professors to giving it labels, you know, and writing law review articles on it. But that was a serious jurisprudential debate. And putting a justice on the court with one predisposition, the other would matter. The other thing that has happened with the sort of nasty confirmation battles is just the fact that they're public. The fact that we're sort of fighting over the intricacies of constitutional law. Especially the whole thing about precedent, right? For a long time in American judicial confirmations and in American judicial politics, the question was would you adhere to precedent? And that meant would you keep Roe v. Wade around? Now that's always been a serious contention, right? It boils down to the question, like if the court gets something wrong or you think the court got something wrong, how willing should the court be to go back and fix its mistake? Assuming the state mistake is of long standing and lots of people have relied on it since then? This has just always been a core debate about how constitutional law should work with a written constitution. But when that seeming methodological question becomes a proxy for what the real dispute is, should we keep abortion rights or not? 

00:23:46 Savannah Eccles Johnston    

Right. So what we're coming to here is we haven't gotten more partisan in terms of Supreme Court nomination. Not even is it that judicial philosophy has gotten more contentious. We've always had divisions on how to interpret the US Constitution. Is that now it's public and it's used as a proxy for bigger policy debates and the hearing process. The very public nature, the very theatrical nature of the of the hearing process is simply exacerbated. Yes, that's what's new in this moment. And of course, we've had some key confirmations that will swing balances on the court. That's what's new, which brings us to a second question, which is, in a perfect world, Matthew's in charge. What should the Senate Judiciary Committee be looking for? When it's deciding how to confirm Supreme Court justices, because, again, there's no rules in the U.S. Constitution, so do we just lean in to, we'll fight over how to interpret the Constitution, have the partisan fights. That's the whole point? Or is there some other standards that we should be looking at? 

00:24:51 Matthew Brogdon  

I would get rid of public hearings in a hot minute. 

00:24:52 Savannah Eccles Johnston    

Agreed. 

00:25:03 Matthew Brogdon 

Public confirmation hearings are just not helpful now. There are people who disagree about that.  But I think the public aspect of it is the most time-consuming, the most contentious and the least productive of it all. So I think that would be 1) The process is highly individualized like what a particular senator sees as being the essential criteria for whether they're going to vote yes or no on a nominee. I don't think we need to, you know, settle that or have some sort of norm to tell senators, you know, here's the set of. Criteria you should use. I think getting to an up-or-down vote more quickly, or letting the president know this is not going to come to a vote. Your nominee’s sunk. There's not enough support. You know, throwing the towel and nominate somebody else, I think would be quite productive. So I think I've been encouraged by the fact last two appointees we've had have had rapid confirmations. I don't think it hurt our knowledge of the nominees any. I think giving us another month or two to hear objections to them would not have improved our knowledge of them, it would just let it would have meant they would have joined the bench with more baggage. So I want confirmations with less baggage. 

00:26:22 Savannah Eccles Johnston 

Right. Another thing to note is that both these nominees have been very young. So another new strategy here. Young nominees neither of them changed the swing on the court, but both were potentially very contentious for the way they interpret the U.S. Constitution. But it didn't play out in hearings again because it isn't that big swing. 

00:26:40 Matthew Brogdon 

I mean, there'd be one surefire way of making confirmations less contentious, and that would be to make the Supreme Court less important. 

00:26:47 Savannah Eccles Johnston 

Ah. Do you do that with term limits? How on Earth do you do that? 

00:26:52 Matthew Brogdon 

You know what the most creative way? Well, you could do it a couple of different ways. One would be you could just make the court really busy. People think people think ohh. Maybe we should, you know, take jurisdiction away from the court. Right. Keep the court from hearing certain cases. Actually, you know what the best way to enfeeble the court would be to pass a bill with just a ton of mandatory jurisdiction in it. Like, make it so that the court had to decide 500 cases a year. You know, its appetite for controversy would go way down, right? We just don't have time right now for this. We're not going to wade into new issues. We don't want more stuff on our docket. Actually, another one, When Merrick Gar… when the whole thing with Garland was going on, there was one proposal. I want to say it came from, like, Randy Barnett or somebody in the middle of all that stuff, and they said, you know what? Congress maybe should think about doing instead of filling Scalia's seat because Scalia died suddenly, and Obama's trying to fill it with Garland. Just reduce the size of the court to 8. 

00:27:53 Savannah Eccles Johnston  

Ohh, there's a very different answer than you get these days. 

00:27:55 Matthew Brogdon 

If you have it, you know, reduce the court to 8 or even 6, give it an even number and fewer justices, they'll A) be busier, and B) it means they'll need a supermajority to do anything controversial. No more 5–4s by definition, you'd have to have, you know, 6–2, basically, in order to do anything all that controversial, have the court be an evenly divided number. Now that means the Court's going to be hung a lot of the time. You get 4–4 splits, awesome! That means the court can't act, and that just means when the court has uncertainty and close division like Congress, it just won't be able to move forward.And so this was this was a weird way of indicating there are ways to make the court less-crucially  important to American politics, even while it remains critical in American law. So you know, not bad solutions, actually. 

00:28:52 Savannah Eccles Johnston 

Delightfully contrarian, actually, for how to rein in the court. 

00:28:55 Matthew Brogdon 

Yeah, I do think I will say you mentioned judicial term limits, reducing the amount of time that justices are on the court, which means reducing the number of appointments that are made or giving you more regularity like this idea of giving 18-year term limits, so we have a new justice every two years sort of rotation like we have in the Senate. 

00:29:13 Savannah Eccles Johnston  

Right, this was Biden's idea. 

00:29:15 Matthew Brogdon 

I think it will tie the court more closely to elections. It will be clear that the consequence of every election will be two appointments to the Court. I don't think it's going to lower the stakes at all on confirmations. It'll raise them. It'll make them. It won't make them less consequential. Probably make them more consequential. And it will tie them more tightly to electoral outcomes. It will tie it to the outcome of election consistently tightly to who gets onto the court. Now you might think it's a good idea if you actually want the court to be more reflective of democratic outcomes. Great idea. We'll point out one more contrarian view, which is if you want to do that, if you want to make sure that you know every president, everybody who wins a presidential election gets 2 appointments to the court because there's a vacancy every two years, I think the easiest way to do is just get rid of Senate confirmation, own up to what you're doing and saying if you win the Presidency, you get to appoint two Supreme Court justices. And get rid of Senate confirmation because…

00:30:14 Savannah Eccles Johnston  

You mean amend the Constitution? Get rid of…

00:30:16 Matthew Brogdon 

Yeah, you'd have to amend the Constitution to do this. Well, you'd have to amend it anyway to adopt the term limits, but I think part of that would have to be you get rid of confirmations for Supreme Court appointees. Precisely because as long as the Senate has the confirmation power, it has the power to be obstinate, to do nothing. And what if they do nothing? And then they delay the appointment, and then you've thrown off the whole schedule. So you could do this very simply. And I think people should own up to the idea. This whole idea of having term limits and regular appointments and the other things is just actually insisting that the court should follow the election returns more closely. 

00:30:54 Savannah Eccles Johnston  

And ought to be political. 

00:30:55 Matthew Brogdon 

And ought to be political, yes. And so then, if that's the case, make it political. 

00:31:00 Savannah Eccles Johnston  

Yeah. And at that point, you've lost me, which takes us back to... I like that the Senate is a check on both the executive power of the judiciary and some very tentative small power on the judiciary itself. There is a useful role to be played by a robust and independent court that is strongly checked by its two co-equal branches. 

00:31:24 Matthew Brogdon

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