AMERICA V. AMERICA: HOW MEDIA FUELS PARTISANSHIP in THE

AMERICA v. AMERICA: HOW MEDIA FUELS PARTISANSHIP IN THE SUPREME COURT CONFIRMATION PROCESS by Eric James Mitchell A thesis submitted to Johns Hopkins University in conformity with the re- quirements for the degree of Masters of Arts Baltimore, Maryland May 2020 © 2020 Eric Mitchell All rights reserved Abstract Filling a seat in the Supreme Court of the United States is arguably one of the most politically divisive actions the President and the Senate must take. Since the early 1980s the legal philosophies held by Justices of the Supreme Court have been gradu- ally nearing the spectrum extremities. Presidents began to nominate judges whose judicial ideologies were more directly aligned with the wishes of their base of voters and outside interest groups. The result was a dramatic polarizing effect when the President and the Senate has to fill a vacancy on the Court. This increase in partisan sentiment and loyalty has been fueled by a three-pronged media engine. Televised, digital, and print media operate in a way that engages, then incites political action on behalf of the consumer. The ubiquitous nature of these forms media means their polarizing effects are nearly impossible to avoid or even recognize. ii Dedication This thesis is dedicated to my entire Mitchell & Degnan family who constantly supported my education and career in politics and government. Without their unwaver- ing encouragement I would not be doing what I love to do every day. I particularly want to thank my parents Michael & Nina who have been by my side at every turn. Their en- during love, their guidance, and steadfast support has made me into the man I am today. All of my successes and all that I have achieved has been thanks to you. Words cannot describe how grateful I am for you both nor can they describe how much I love you. I also want to thank my siblings Sean, Ryan, Emily, and Jack. You all have been the best friends I could have ever asked for. You all are my role models and I am so proud to be apart of our team. No matter the physical distance separating us, I am never alone because I carry you all in my heart everywhere I go. I love and miss you each and every day and look forward to all being together again soon. To my family, I owe everything to you. Family over everything. iii Table of Contents Abstract ……………………………………………………………………………………….. ii Introduction …………………………………………………………………………………… 1 Chapter 1: Media on the Screen …………………………………………………………. 14 Chapter 2: The Social Component of the Court ……………………………………… 49 Chapter 3: Supreme Tangibility ………………………………………………………….. 79 Conclusion …………………………………………………………………………………. 112 Bibliography ……………………………………………………………………………….. 131 Curriculum Vitae ………………………………………………………………………….. 139 iv Introduction Partisanship has not always been a part of American life. In fact, the Founding Fathers constantly railed against the idea of factions or partisan identity. These men rejected party affiliation because it would force tribalist ideas and tendencies by elect- ed officials. As opposed to doing right by an entire constituency, politicians only had to appeal to their faction in order to maintain power.1 In Federalist 10 James Madison dis- cusses how factions and partisanship makes our democracy more unstable as an “Us versus Them” mentality begins to arise.2 However, the 1800 presidential election essentially justified partisan tactics. Since that election 220 years ago partisanship has been a key aspect of American political culture. Today, we experience partisanship daily and in a much more dramatic fashion, particularly when filling vacancies on the Unit- ed States Supreme Court. The reality is every action has a political motivation behind it. The news we watch, the businesses we frequent, and even the way in which we are raised have become politicized in contemporary American culture. The difference in America now compared to the time of Madison, Hamilton, and Jefferson is these actions are constantly dissected, examined, and then either celebrated or ridiculed. One of the most common places for this partisan combat to appear is during the confirmation process for potential Justices to the United States Supreme Court. This once apo- litical, non-controversial institution now stands as ground-zero for some of the most contentious political fights we see in modern day America. The real question we as Americans should be asking ourselves is how did we get here? 1 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (Annotated): A Collection of Essays Written in Favour of the New Constitution (Coventry House Publishing, 2015) 2 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (Annotated): A Collection of Essays Written in Favour of the New Constitution (Coventry House Publishing, 2015) 1 This thesis will find answers to the question of how we became so polarized with regards to the Supreme Court confirmation process. In this age of instant access to television, social media, and written news, a few likely suspects appear that seem responsible for inflaming our current hostilities with those who disagree with us politically. This thesis contends these three forms of media are primarily responsible for driving an ideological wedge between not just Republicans and Democrats, but also between co- workers, neighbors, friends, and families during Supreme Court nominations. In this thesis, the role of television, social media, and print media will be examined to see what impact, if any, these mediums have on the Supreme Court confirmation process as a whole. To support these claims this thesis will refer to dozens of scholarly articles and research in an attempt to show television, social media, and print media are major contributors to the hyper-partisan atmosphere we are witnessing today in America with respect to the highest court in the land. It is first important to recognize the role the media plays in this process. The media obviously does not pick a nominee for the Supreme Court. This power to nominate judicial candidates first resides with the President of the United States. The Con- stitution of the United States grants the president this power under Article II, Section II, Clause II which is commonly referred to as the Appointments Clause.3 This clause em- powers the president to nominate individuals to public office, including the Supreme Court. Upon the president’s nomination the task of confirmation then falls on the Unit- ed States Senate. The Senate’s role, according to the Constitution, is to confirm these nominees through a process referred to as advice and consent.4 Traditionally, the 3 U.S. Constitution, art. 2, sec. 2, cl. 2. 4 U.S. Constitution, art. 2, sec. 2, cl. 2. 2 process begins by having the Supreme Court nominee meet with senators of both parties and Senate leadership as a sort of introduction to members of the higher chamber of Congress. Here, the nominee is asked questions on where he or she stands on certain legal issues or questions on their judicial philosophy. After this introduction the Senate Judiciary Committee holds a hearing to ask the nominee questions under oath about their previous rulings in lower courts, their thought process on controversial precedent or legislation, or any other subject senators deem relevant. The purpose of the hearing is to demonstrate a nominee’s qualifications and merits that would make them suitable, or unsuitable, for a lifetime appointment to the Supreme Court. After a majority vote in favor of confirmation within the Senate Judiciary Committee, the confirmation is then brought to the floor of the Senate. Here, senators rise in favor or op- position of a certain nominee. Once the time for floor debate ends the whole body votes on the confirmation. After the vote is completed, there is either a new member of the Supreme Court or a confirmation that failed to gain enough favorable votes. While this nominee is attempting to shore up support in Congress he or she is simultaneously introduced to the country through the American media. His or her re- sume, rulings, and judicial philosophy are broadcast on essentially every television network, social media platform, or newspaper across the country thus beginning the partisan fight throughout constituencies across America. The overall success or failure of confirmation depends on the ensuing messaging battle waged by both political ap- paratuses and outside interest groups. These actors want to ensure their values are represented on the Supreme Court and are willing to spend their time and money fight- 3 ing for their desired outcome in the Senate. Herein begins the discussion on the role media plays in amplifying partisan sentiment during the confirmation process. The Lead Up to the Modern Day Court Renowned author and political theorist Alexis de Tocqueville accurately predict- ed the rise of both the power and importance of the federal judiciary in Washington and throughout the country. In de Tocqueville’s Democracy in America he describes how he frequently experienced political differences morph into judicial challenges. Therefore, political actors tended to be well versed in the law in order to see political goals achieved. This claim by Alexis de Tocqueville is important in our understanding of how the Court evolved and how it is utilized today. De Tocqueville wrote: There is hardly any political question in the United States that sooner or later does not turn into a judicial question. From that, the obligation that the parties find in their daily polemics to borrow ideas and language from the judicial sys- tem. Since most public men are or have formerly been jurists, they make the habits and the turn of ideas that belong to jurists pass into the handling of public affairs. The jury ends up by familiarizing all classes with them.

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