Chief Justice Roberts: Neither Scalia Nor Ginsburg Could Get Confirmed Today

Chief Justice Roberts lamented recently that an increasingly partisan confirmation process could mean that Justices who have contributed much to the Court would not be confirmed today. He's right.

Supreme Court Justices 2

Speaking at a law school in Nebraska, Chief Justice John Roberts says that neither of the Supreme Court’s two most prolific and ideologically engaging Justices would be confirmed to the Court in the current political environment:

United States Chief Justice John Roberts told a Nebraska audience he worries the partisanship that grips Washington will spill over onto the Supreme Court.

Roberts said he’s concerned about the other two branches of government.

“They are not getting along very well these days,” Roberts said during a question and answer period at the Nebraska College of Law. “It’s a period of real partisan rancor that, I think, impedes their ability to carry out their functions”

A crowd of about 400 attended the visit of the Chief Justice to the College of Law, located on the East Campus of the University of Nebraska-Lincoln. Many others, including high schools throughout the state, listened via an Internet stream of the event.

Eighth Circunited States Court of Appeals Chief Judge William Riley asked Roberts questions during the hour-long session, admitting to the audience that Roberts had seen the questions ahead of time.

Many of the questions elicited advice from the Chief Justice to law school students, some dove into the inner workings of the court.

Roberts’ worries about partisanship emerged when he was asked about challenges that face the judiciary.

Roberts asserted strongly the court isn’t partisan, divided into Republicans and Democrats, though he conceded an intelligent lay observer of the confirmation process might come to a different conclusion.

“And how somebody as imminently qualified as our newest member, Justice (Elena) Kagan, is confirmed by almost a strict party-line vote. You think, well this must be a political entity, because they’re putting people on or rejecting them on partisan, political lines when that’s just not how it works,” Roberts stated. “So, I’m worried about people having that perception.”

Roberts claimed that hasn’t always been the case, illustrating his point by focusing on the two Justices who represent perhaps the widest philosophical differences on the court.

“It’s not like it’s always been that way,” Roberts said. “Justice (Antonin) Scalia, I think, was confirmed unanimously. I think Justice (Ruth Bader) Ginsburg was confirmed unanimously. Neither one of them would have a chance today. And that doesn’t make any sense. That’s bad for the judiciary.”

Roberts is partly correct in that last statement. Justice Scalia was indeed confirmed unanimously in a 98-0 vote, on the same day that then Associate Justice William Rehnquist was confirmed as Chief Justice of the United States by a 65-33 on September 17, 1986. Ginsburg, on the other hand, was confirmed in 1993 by a 96-3 vote, the three Senators voting against her being Jesse Helms, Don Nickles, and Bob Smith. Notwithstanding this, Roberts points remains basically correct. In today’s political environment it is highly unlikely that a Justice like Ginsburg or Scalia could get confirmed under current political condition.

Traditionally, and perhaps somewhat inappropriately given their importance, confirmations of Supreme Court Justices tended to be somewhat non-controversial. For the most part, when a President named someone to the Supreme Court the Senate had generally acted as something of a rubber stamp in considering the nomination even if the Senate and the White House were controlled by different parties. Since 1789, of the 151 people nominated to the Supreme Court, only 29 have not actually been confirmed to the post and, of that 29, only 12 of those were actually considered by the Senate and rejected (source). That’s a failure rate of less than 20%, and less than 8% if you only count the people who had actually been considered by and voted on by the Senate. Not surprisingly, the phenomenon has gotten more attention, if not become more common1, in the past fifty years or so. Lyndon Johnson saw his attempt to elevate his good friend Abe Fortas to Chief Justice defeated in 1968 due both to Fortas’s relationship with the White House and questions regarding the nominee’s finances. Richard Nixon saw two nominees, Clement Haynsworth and G. Harrold Carswell, rejected. And, of course, Ronald Reagan saw his appointment of Robert Bork rejected in 1986.

More recently, though, the trend hasn’t been rejection of nominees so much as it has been narrow and partisan confirmation votes. Chief Justice Roberts was confirmed by a vote of 78-22 in 2006. Justice Alito was confirmed by a much narrower 58-42 that same year. As Roberts, noted Elana Kagan was confirmed 63-37 in 2010 and, a year before her Justice Sonia Sotomayor was confirmed 68-31. What stands out about each of these close votes is the fact that, with the exception of Alito, who was appointed to replace Sandra Day O’Connor, none of these appointments could arguably have said to have any real impact on the ideological direction of the Court. Roberts was appointed to replace William Rehnquist, Sotomayor was appointed to replace David Souter, and Elena Kagan was appointed to replace John Paul Stevens. Perhaps if any of these appointments would have had the effect of significantly shifting the balance of the Court, the controversy and division over their appointments would be understandable. The fact that it happened when their appointments were, basically, just switching faces on the same side of that balance, suggests, as Roberts intimates, that partisan divisions on Capitol Hill are having an impact on the judiciary. Of course, that was already apparent in the backlog of nominations to the Circuit Courts of Appeal and District Courts, a topic that Roberts has also spoken out about in the past. 

Given this recent trend,  I believe that Roberts is correct that both Ginsburg and Scalia would have a hard time getting through the Senate confirmation process today. The reasons have little to do with their qualifications, because I don’t think that there’s anyone who could credibly argue that, both now and at the time they were nominated, their qualifications are impeccable. The main problem that a nominee like Ginsburg and Scalia would have today would be the long paper trail of academic papers, speeches, and judicial opinions that they brought to the confirmation. Of course, the fact that it was precisely this prior work that demonstrated the fact that these two nominees were eminently qualified for the Court just makes the process all the more maddening, because it basically guarantees that Presidents will be more inclined to nominate milquetoast candidates and people with little or no paper trail while passing over other obviously more qualified nominees because they might prove to be controversial. Before he was nominated, Scalia was a prolific writer on issues of originalism and the proper interpretation of the Constitution, and Ginsburg was a prominent advocate for abortion rights and other women’s causes. In today’s political environment, a Presidential candidate would probably not even nominate them to the Supreme Court, and if they did they would both have a far bumpier ride than they did in 1986 and 1993. That’s unfortunate to say the very least, but it’s unlikely to change no matter who controls the Senate and the White House.

Going forward, there are likely to be a series of Supreme Court nominations that a future President will make that are likely to be contentious. Justice Scalia is 78 and Justice Ginsburg is 81, and Ginsburg has dealt with health issues in the past and been the subject of numerous articles from people on the left suggesting that she ought to step aside for the good of the Democratic Party.  Justice Stephen Breyer, who has generally had a quiet and noncontroversial tenure on the Court, is 76 and, perhaps most importantly, Justice Anthony Kennedy is 78 years old and just a few months younger than Justice Scalia. Whether by choice or because health reasons make it necessary, it’s inevitable that we’ll see several of these step aside in the coming years. When that happens, and again no matter what happens with regard to control of the Senate or the White House, we’re likely to see a contentious nomination process and, most likely, the selection of nominees who are basically ciphers in order to try to guarantee confirmation. Because of that, we’re not likely to see Justices of the caliber of Scalia and Ginsburg come out of the process, and that’s a loss for the nation.

1 Since 1968, there have been 23 nominations to the Court, 4 of which has been considered and rejected by the Senate, for a failure rate of 17.9%, roughly equivalent to the historical average

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Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. humanoid.panda says:

    “While I lied about my intentions, invented some crap about balls and strikes, and now am free to impose my noxious ideological fumings in the guise of dispassionate jurispudence!”

  2. Stonetools says:

    Roberts himself is a product of a partisan judicial selection process-a process that dates all the way back to Richard Nixon, who ran on the platform that he would choose conservative judges( of course, he did not phrase it that way).
    Roberts simply lied his a$$ off about whether he would be a conservative partisan, then went ahead and was conservative partisan, for the most part.
    The bottom line is that the two parties simply represent two starkly different visions of America, and so are going to select judges that share that vision. I would argue that this is indeed what the parties should do.
    Frankly, I don’t give a d@mn how brilliant an academic writer Scalia is or what a technically great advocate Roberts is. What matters is that their vision of America differs from mine and that their decisions are going to move America towards their vision. I’m sure conservatives feel the same way about Ginsburg and Sotomayor.

  3. JohnMcC says:

    Two quick reactions: First, as a liberal and yellow-dog-democrat, I bristle at the equivalence. Although as the sibling of a TeaParty wingnut, I understand how it looks from both sides.

    And that he’s probably correct, as our friend from the genus Ailuropoda notes above, that the only way committed partisans will be seated on the Court in future is by following the path that Justice Roberts traveled which is to say they will have to pretend to be non-partisan.

  4. Tillman says:

    Has the court ever been nonpartisan?

  5. James Pearce says:

    Roberts would know. The only way he got confirmed was by lying through his teeth.

    (My comment was written before I read all the others. I was even going to mention that “balls and strikes” nonsense. Good job, guys.)

  6. Stonetools says:

    @Tillman:

    Nope. Just go back and watch the episode of the “The Roosevelt’s” dealing with The Great Depression and see how FDR had to face opposition from a conservative SCOTUS that struck down a lot of New Deal legislation. FDR threatened a “court packing ” scheme, the Court suddenly decided to start finding legislation Constitutional , and the the threat receded. A number of ancient conservatives retired, FDR replaced them with liberals, and life went on.

  7. michael reynolds says:

    We used to get partisan hacks, now we get dishonest partisan hacks. Progress.

  8. al-Ameda says:

    These justices, all of them, come to the bench with a well documented record of judicial philosophy and opinion. So, to me, any congressional questioning about so-called impartiality is just so much bulls*** and is largely kabuki. What is any candidate supposed to say, “my mind is made up, abortion laws are toast?” the record is there, and frankly elections matter.

    By any objective measure nominees such as Ginsburg, Scalia, Alito and Kagan are completely well qualified to be appointed to the Court. However we all know, or should know, that the political environment will have something to do with whether or not ANY nominee is approved. This has always been true, and we know now the we are in a period when objectivity is valued less than toxicity.

  9. george says:

    Is there any other country in the world with such a partisan supreme court? The Canadian one isn’t even close to being partisan (in fact its a non-issue in elections, because no one cares who’s in power when a justice is replaced – though admittedly nepotism has played a role at times … friend of a friend kind of thing with typically almost no ideological element).

    And that’s despite the actual parties being as partisan in Canada as the Democrats and Republicans in the US. Ive been told by German colleagues that the same is true there, and I think its also non-partisan in the UK. I wonder why elsewhere people can agree that the supreme court rules on law and is basically non-political, but in the US SCOTUS is highly ideological? In Canada its difficult to say what (if any) ideology most of the SC justices have.

    Anyone have any theories? It certainly seems to be the anomaly, and I’m guessing it has to do with the separation of powers in the US (legislative and executive), but it’d be interesting to know more.

  10. Stonetools says:

    @george:
    I think it has to do with the reality that it’s impossible to change the Constitution any longer through the open political process of Constitutional amendment. The way to change the Constitution now-that is, institute really big political change- is now by appointing judges to the SCOTUS. Once there, they can “amend the Constitution” through judicial decisions that can’t be reversed by the political process.
    A prime recent example is Citizens United, which essentially made political contributions virtually impossible to regulate and set no limits on contributions to politicians. This radical decision cannot be reversed by the political process, no matter that most Americans think ( rightly, IMO) that it legalizes political bribery.
    The only way to reverse the decision will be to replace conservative judges on the Court with liberals.
    Although I’m not sure, I imagine that the Canadian and German courts don’t have the power to unilaterally and irreversibly amend their respective Constitutions.

  11. Siegfried Heydrich says:

    So . . . does anyone think that Scalia, Alito, Roberts, and Thomas are going to try and stay on the court for the next 6 (or maybe 10) years? That’s 2 years more of Obama, 4 of Hillary, and maybe another 4 of Hillary . . . Sorry, GOP, but given that the ’16 elections will very likely give us a supermajority in the Senate, I doubt very seriously that we’ll be seeing any conservative justices named to the court for at least a decade.

  12. george says:

    @Stonetools:

    I think it has to do with the reality that it’s impossible to change the Constitution any longer through the open political process of Constitutional amendment. The way to change the Constitution now-that is, institute really big political change- is now by appointing judges to the SCOTUS. Once there, they can “amend the Constitution” through judicial decisions that can’t be reversed by the political process.

    That’s an interesting point – if the only way to enact change is through interpretation of fundamental laws (as opposed to creation/removal of such laws) then the people who make those interpretations will become very politicized. If one avenue of change (and the Republicans want change as much as the Democrats, in their case to a past that never existed except in Hollywood) is blocked, other avenues will be forced open.

    As a side point, its currently almost impossible to change the constitution in Canada as well (there’s a formula involving getting provinces to agree which makes it more unlikely than even the Toronto Maple Leafs ever winning the Stanley Cup again), but the constitution is relatively new in Canada and isn’t held in anything like the mythical quality of the US Constitution.

  13. Jenos Idanian #13 says:

    @Stonetools: I was tempted to give you a thumbs up on your comment, because it’s one of the most honest things I’ve ever read here.

    However, as someone who actually prizes the Constitution and believes in it, I’m almost horrified. It’s a form of “the ends justify the means” that actually endorses trashing the Constitution.

    Did you realize, when you were writing that comment, that you were explicitly saying that you were admitting that certain issues need to be settled by a Constitutional amendment, but have given up on that proposal without it having ever been tried?

    Oh, and you’re completely wrong on Citizens United, but that’s totally secondary to the matter at hand.

  14. Grewgills says:

    @Siegfried Heydrich:
    Scalia, maybe not, though he will probably try. Roberts and Alito are only 59 and 64 respectively. I imagine they will stay on longer than another 10 years. If they have the tenacity of Ginsburg, they might stay another 20.

  15. Hal_10000 says:

    Ah, yes. When Roberts voted in favor of gay marriage and Obamacare, he was a fine justice. Now that he’s made a couple of more decisions people disagree with, he’s back to being a partisan hack (partisan hack being generally defined as “any judge with whom I disagree”).

    Look at your comments and you’ll see exactly what Roberts was talking about.

  16. Barry says:

    Doug, after Bush v. Gore, Citizens United, Shelby Country v. DoJ, what do you want? We’ve seen right-wing hacks put out right-wing hackery.

  17. gVOR08 says:

    @Hal_10000: Roberts strikes me as a very committed partisan, but a smart one. First, he’s committed to the Republican establishment, not the base. He likely couldn’t care less about gay rights. Second, he’s smart enough to realize the credibility of the Court is on thin ice and he needs to sacrifice peripheral stuff like Obamacare to allow himself some maneuvering room on critical stuff like Citizens United.

  18. Sherparick says:

    One thing to remember is that the U.S. Constitution was not designed to accommodate “parties,” in fact the ideology of the founders in 1786-8 was very much “anti-party,” the system was suppose to work based on elite consensus and compromise. Of course within 5 years the “elite” consensus had broken down and Jefferson and Madison were organizing the first American political party in opposition to Hamilton and Washington and relationships became as venomous in the 1790s and early 1800s as they are today. The total victory of the Jeffersonians and their ultimate absorption of the Federalist (along with some of Hamilton’s ideology) by them led to a rough consensus until Slavery broke it apart). And throughout the 19th century, the Senate operated on the basis of majority vote, not a super-majority as it does today. http://www.newrepublic.com/article/112606/filibuster-unconstitutional (Of course all individual senators, because the current rules give each of them a lot of power (even if it i mostly of a negative sort) without accountability, are reluctant to change the innovations of the last 40 years). The basic divide that goes back to the slavery question as reasserted itself in the U.S., and when it does, it always puts a large amount of nastiness in our politics (even the trope of the dark, sinister terrorist echoes similar screeds during the Slavery debate, such as when the Democratic Governor of New York denounced the Emancipation Proclamation as “a proposal for the butchery of women and children, for scenes of lust and rapine, and of arson and murder…” http://www.lawyersgunsmoneyblog.com/2014/09/day-labor-history-september-22-1862. It is somewhat cute that John Roberts would make such a statement given how much he helped empower arch-partisans with Citizens United.

  19. george says:

    @gVOR08:

    Roberts strikes me as a very committed partisan, but a smart one. First, he’s committed to the Republican establishment, not the base. He likely couldn’t care less about gay rights. Second, he’s smart enough to realize the credibility of the Court is on thin ice and he needs to sacrifice peripheral stuff like Obamacare to allow himself some maneuvering room on critical stuff like Citizens United.

    I don’t know, the only thing I base Roberts and the others on is their actual voting records. Theories about their inner motivations tends to say much more about the person giving the theory than the subject (you see this all the time with presidents – they’re always much eviler or better than how they govern, because they’re in stealth mode).

    Roberts actual record is right wing, but not extreme, no more than say Breyer is extreme left wing. What goes on their heads is more than I care to speculate on – I’ve noticed that more often than not I just end up projecting my beliefs onto their thoughts.

    And I guess I also simply don’t care why a justice judges the way he or she does – this is one of those cases where its the end result that matters.