A Tale of Two Supreme Court Nominations

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

In Washington, D.C., U.S. Supreme Court nominee Judge Amy Coney Barrett is going through a high-profile confirmation hearing before the Senate Judiciary Committee, accompanied by partisan fireworks. Across the country in California, much more quietly, newly nominated California Supreme Court justice Martin Jenkins is going through the California confirmation procedure minus partisan bickering. Which confirmation process is best? 

The D.C. proceedings are televised and covered closely by the press. The national stage gives politicians an opportunity to make political points while ostensibly questioning the prospective justice on qualifications and judicial judgment. Judge Barrett has followed the well-worn path of previous Supreme Court nominees by avoiding commenting on how she would rule on contentious cases like abortion and the Affordable Care Act. 

The route for retired Appeals Court Justice Jenkins is quite different. Nominated by the governor, Jenkins’ name is submitted to the State Bar’s Commission on Judicial Nominees and Evaluation. After the evaluation is completed the nominee must be confirmed by the Commission on Judicial Appointments, which consists of California’s Chief Justice Tani Cantil-Sakauye, the State Attorney General Xavier Becerra, and the senior presiding Justice of the Court of Appeal J. Anthony Kline. 

This process is not exposed to public scrutiny and the politics is lessened. But let’s not pretend that politics don’t exist even in the California process. One of the Commission on Judicial Appointments members is a partisan elected official, Democratic Attorney General Xavier Becerra.

Becerra has not shied away from letting his partisanship influence his thinking as recent fights on ballot initiative titles and summaries suggest. He recently defended his ballot summaries arguing that everyone is partisan. 

Once the Commission on Judicial Appointments approves a nominee, he or she takes a position on the court but must be confirmed by the state’s voters. Reconfirmation by the voters then comes every 12 years. 

The California Supreme Court has been entangled in politics, most notably when Chief Justice Rose Bird and two other liberal justices new 12-year court terms were denied by voters after a bitter campaign that centered on the court delaying capital punishment. 

But the California confirmation process has been rather free of politics. 

So, who does Supreme Court nominations better, California or the federal government? 

Reactions to the U.S. Supreme Court nomination brought with it threats to change the make-up of the court and an opportunity for both sides of the political aisle to fundraise over the court battle. Not in California. Changing the size of the court would take a constitutional amendment unlike in Washington, where such a move can be done legislatively. Fundraising around the court in California was pretty much limited to the extraordinary retention election in 1986 when Rose Bird and her colleagues, Cruz Reynoso and Joseph Grodin were denied new terms. In fact, in uncontested retention elections for most justices little fundraising has occurred, but it is not unheard of. 

Is it better that Californians don’t witness a prospective jurist sit for questioning? That part of the federal process would seem superior, but it is tarnished by the political grandstanding that comes with it. Yet, despite the politics, Americans know a lot about Judge Barrett by now. Few Californians know anything about Justice Jenkins. More transparency in the California process would be a plus.

How about a vote of the people on sitting justices? One can imagine if that were to occur on the federal level it would be like an exhaustive presidential contest each time. Judges are supposed to be like umpires, making reasoned judgments on the law and the cases before them. Adding a vote would change the judicial branch of the government completely and add partisan warfare even more intrusively than exists today damaging the role of the court.

There are pluses and minuses to both confirmation systems in these contentious times. It’s probably good we don’t have to sit through multiple confirmation fights coast to coast right now.

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