Key points:
- Confirmation Bias explores the Supreme Court’s partisan struggle.
- Democrats and Republicans have abandoned shared rules, leading to democratic decay.
- The judicial filibuster has died, reflecting a breakdown in trust and norms.
Carl Hulse’s Confirmation Bias is not really about psychology. It’s about power—and how the fight for control of the Supreme Court has become a grim symbol of democratic decay. It tells the story of how both parties, over decades, abandoned institutional norms, replaced shared rules with tactical advantage, and turned the judiciary into a prize to be captured. What emerges is not a story of good versus evil, but of brinksmanship, selective memory, and the slow corrosion of the democratic system itself.
Hulse traces the evolution of confirmation battles from Robert Bork to Brett Kavanaugh, showing how each perceived injustice became justification for the next escalation. Democrats blocked Miguel Estrada; Republicans blocked Merrick Garland. Each side cries foul, but few are honest about the part they played. As one bipartisan op-ed cited in the book puts it: “Both are being insincere—whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side.”
It’s a cycle of mutual partisan amnesia. And the result is a Supreme Court confirmation process governed by one rule: if you have the votes, you do it. If you don’t, you wait and hope your side gets another shot. What once aspired to be a deliberative process grounded in institutional respect has become a raw power struggle—one with enormous stakes for our democracy.
This is nowhere clearer than in the demise of the judicial filibuster. Some Democrats now mourn it as a tactical mistake. But I don’t. Its death was inevitable. The filibuster, whatever its romanticized past, had long since become a tool of obstruction. The idea that 41 senators—often representing a minority of Americans—could indefinitely block judicial appointments was already out of step with a functioning democracy. And when shared norms evaporate, procedural tools like the filibuster can’t survive. It wasn’t just a mistake by Harry Reid in 2013; it was a symptom of a larger breakdown in trust, one both parties accelerated.
But if Democrats weren’t uniquely to blame, they were uniquely unprepared. That may be Confirmation Bias’s most damning revelation. The Republicans had a long game, a plan, and a disciplined political infrastructure anchored by the Federalist Society. The Democrats had norms, caution, and a stubborn belief in institutional process. In 2016, they had a president with the legal and constitutional right to fill a vacant Supreme Court seat—and they failed to fight for it. Merrick Garland was a moderate, conventional nominee chosen to avoid controversy. But the moment didn’t call for conventional. It called for confrontation.
Obama and his team misread the political environment. Big donors stayed focused on the presidential race. Progressive groups didn’t mobilize. Senate Democrats, stunned by McConnell’s audacity, opted for civility over outrage. The result: the seat went to Neil Gorsuch. And the message was clear—Republicans could break the rules and get rewarded.
The consequences of that failure are now in full view.
The Supreme Court has become not just partisan, but aggressively counter-majoritarian. It has undone decades of legal precedent on abortion rights, environmental protections, campaign finance, labor rights, and voting access. It has embraced a sweeping interpretation of executive power. In 2024, it upheld controversial actions from Trump’s Department of Government Efficiency (DOGE) that dismantled key regulatory bodies under the guise of curbing the “administrative state.” Just this term, the Court limited the ability of federal agencies to act independently, echoing the deconstructionist vision pushed by Trump’s judicial architects.
What once was a potential brake on authoritarian overreach has become, in many cases, a willing participant.
This is not a partisan talking point. It’s a structural crisis. When the courts are no longer seen as neutral arbiters—but rather as partisan enablers—the very idea of judicial legitimacy collapses. Americans are losing faith in the Court not because they disagree with its rulings, but because the process of seating its members has become indistinguishable from partisan warfare. And worse: because the Court now plays an active role in insulating authoritarian politics from accountability.
It didn’t have to be this way. But Democrats were consistently behind the curve—slow to recognize the stakes, slow to act, and far too trusting of a process that had already been hijacked. While Republicans treated the courts as the ultimate political prize, Democrats treated them as an afterthought. While one side built a pipeline, the other hoped for good faith.
Confirmation Bias tells that story in painful detail.
And the problem isn’t going away. As Hulse writes, “The most recently wronged party steps it up a notch as soon as the occasion arises.” That’s not prophecy; it’s a diagnosis of where we are. If Democrats retake the Senate and White House, they’ll face enormous pressure to retaliate—perhaps by expanding the Court, instituting term limits, or ignoring Senate traditions altogether. And they’ll be justified. But they’ll also be reinforcing the same cycle of institutional collapse. The old rules are gone. And no one—not even those in power—know what replaces them.
So where do we go from here?
There are no easy answers. Structural reform may be necessary—term limits, depoliticized vetting, reimagining the role of the Court itself. But none of that will matter unless both parties accept one hard truth: the system is broken not just because of what the other side did. It’s broken because everyone has contributed to the collapse, and no one wants to take responsibility.
Everyone believes they were wronged. And they’re right.
But no one wants to admit they’ve done wrong themselves.
That’s not just a confirmation problem. It’s a country problem.
“Merrick Garland was a moderate”
There was nothing moderate about Garland as proven by his tenure as Attorney General.
From article: “It’s about power—and how the fight for control of the Supreme Court has become a grim symbol of democratic decay. It tells the story of how both parties, over decades, abandoned institutional norms, replaced shared rules with tactical advantage, and turned the judiciary into a prize to be captured.”
That’s for sure. Of course, the reason for this is because legislative processes are so corrupt. You want a right to abortion? Congress could make it an explicit right, if it wasn’t so screwed up in the first place.
You want Chinese nationals to stop “birth tourism”? Congress could also remove birthright citizenship, if it was inclined to do so.
You want the Federal government to stop selling off public lands? Again, Congress could do so, if it was so inclined. (But again, Democrats sometimes support that, as well.)