Why did you become a United States Senator, Joe Manchin? The question may sound aggressive, but I’m genuinely curious. What drew you to run for Senate in 2010, and again now? Was it, as your official website suggests, to do what is best “for West Virginia and the nation?” Or perhaps you wanted to come up with “bipartisan solutions” to American issues. From what I gathered from your website and campaign material, it’s because you believe that you bring something to the table that will make America a better place, both now and later. Did you feel like you were ensuring all Americans a better future when you voted to confirm Justice Brett Kavanaugh?
It is undeniable that the process of confirming a Supreme Court Justice was forever changed following the nomination of Robert Bork. Bork, a constitutional originalist, was nominated by Ronald Reagan following the retirement of Justice Lewis Powell in 1987. The parallels to Kavanaugh’s nomination are significant. Justice Anthony Kennedy, much like Powell, was long considered a swing vote during his time on the bench, frequently crossing the line between liberal and conservative, activist and originalist. Much like now, the ideological distribution of the court hung in the balance in 1987.
Before Bork’s nomination, the most common reasons to not confirm nominees to the Supreme Court were a lack of qualification or something unsavory lurking in their judicial record. However, Bork’s longstanding view that the Constitution does not contain a fundamental right to privacy galvanized pro-choice Americans to protect Roe v. Wade. A large number of pro-choice groups organized to pressure for Bork’s rejection, and the Senate majority Democrats, led by Ted Kennedy, answered the call. Since Bork’s nomination, the Senate has only confirmed Supreme Court nominees when the Senate majority is of the same party as the president, except for Justices Kennedy and Clarence Thomas. Merrick Garland’s failed nomination at the hands of a Republican majority Senate in 2016 is an excellent example of this partisanship.
Even though the confirmation process has become increasingly polarized, Americans should expect that our senators only vote to confirm nominees, both to the Supreme Court and lower federal courts, that they believe will best uphold their constitutional values. Instead, an increasing number of senators seem to vote based on what they think will keep them in their respective seats. Joe Manchin held out until the last possible minute to announce his support for Kavanaugh, waiting to support the Justice publically until after Susan Collins (R-ME) announced her intention to confirm the Judge, ensuring the majority.
Manchin stands alone as the sole Democratic Senator to vote in favor of Kavanaugh, most likely motivated by electoral pressure from West Virginians. As one West Virginia resident suggested in an interview with The New York Times, “His constituents out here told him basically, ‘You vote this guy in or we’re going to vote you out.’ He figured he better stay in with his people.” And it appears to have had a positive effect; Manchin’s polling numbers rose from a tie with Republican challenger Patrick Morrisey before the vote to an eight point advantage after Kavanaugh’s confirmation (per FiveThirtyEight).
Manchin, however, is not the only strategic voter. Susan Collins (R-ME) and Lisa Murkowski (R-AK) stand out in the Republican party for being pro-choice. Murkowski is a member of the Republican Majority for Choice and in 2017 Collins received Planned Parenthood’s Barry Goldwater Award, honoring “Republican lawmakers who champion reproductive health care issues.”
Why then, did both women vote to confirm Neil Gorsuch when President Donald Trump nominated him the position of Associate Justice in 2017? Gorsuch has a long record of anti-choice jurisprudence, most notably his decision in Burwell v. Hobby Lobby (2014), which ensured companies the right to deny its employees contraceptives, on religious grounds.
For Susan Collins, perhaps it is because she is falling more in step with the conservative agenda. In 2017, Collins voted with the GOP 87% of the time— far more than any of her previous 20 years in the Senate. In Murkowski’s case, perhaps it is because she feels pressure from the 51% of Alaskans that voted for Trump in 2016. Either way, both Senators violated one of their core beliefs to vote along party lines in favor of Gorsuch, and in Collins’ case, again for Kavanaugh.
This same infectious, polarized attitude permeated Kavanaugh’s hearings in front of the Senate Judiciary Committee. During his multi-minute tirade, while questioning Justice Kavanaugh, Senator Lindsey Graham (R-SC) addressed Democrats and said, “You want this seat [on the Supreme Court]? I hope you never get it.” After the hearings, Graham told reporters, “If this is the new norm, you [Democrats] better watch out for your nominees,” implying that Republican senators would block any future Democratic nominees merely because Democratic presidents nominated them.
This brings me back to you, Senator Manchin. Why did you want to become a United State senator? The same goes for you, Senators Collins and Murkowski, and you as well, Senator McConnell. My guess? Because you believed that you could, through hard work and steadfast principles, improve the lives of American citizens. If this is indeed your goal, why are you voting to confirm Supreme Court Justices whose jurisprudence goes against your fundamental beliefs? If the answer, as I suspect it is, is to keep your place in the Senate, I think it’s important to ask yourself if your time as Senator will have a more significant and longer lasting impact on American life than the 35+ years Neil Gorsuch and Brett Kavanaugh could spend on the Supreme Court. The Supreme Court is too important of an institution to be held hostage by the political ambition of a handful of U.S. senators determined to vote based on what they think will let them keep their seat.