Historical Perspective on SCOTUS Nominations

Despite what seems to be the prevailing mythos, most nominations fights are nothing like the current one.

There is a mythology surrounding SCOTUS nominations that they are always rough-and-tumble and marked by all kinds of perfidy. The classic example is Robert Bork followed by Clarence Thomas.  What I would note is that Bork’s failed confirmation was over 30 years ago and that Thomas’s was over 25.  Further, Thomas weathered credible allegations of misconduct to find himself confirmed as a Justice on the US Supreme Court. Keep in mind:  after Bork they was also Douglas Ginsburg whose name was withdrawn over issues linked to marijuana before Reagan successfully saw Kennedy named to the bench.

To that list we could add Harriet Miers, the 2005 nominee whose name was withdrawn over concerns about her qualifications (bipartisan concerns, I would add) and the 2016 nomination of Merrick Garland, whose nomination was never acted upon by the Senate.

Of these listed:  Bork was controversial and lost the a Senate vote, Ginsburg was withdrawn over past drug use, Thomas was investigated and confirmed, Miers was  withdrawn for qualification problems, and was Garland blocked by politics.

Since Bork, too, we have seen Kennedy, Souter, Breyer, Ginsburg, Roberts, Alito, Sotomayor, Kagan, and Gorsuch nominated and confirmed without major issue. Of those, five (Kennedy, Souter, Roberts, Alito, and Gorsuch) without any crazy drama of the type we are seeing now.

Was there rhetoric? Oh yes, there was.  Was there hand-wringing over this topic and that?  Absolutely.  (Indeed, with the GOP  nominees, rhetoric not unlike what we heard about Kavanaugh).  But at the end of the day, there were hearings, a vote, and a swearing in.

I note all of this because a tweet made me start thinking last night beyond the issue of the mythology of the SCOTUS nomination process to the actual history thereof.   It is not one of endless dirty tricks against Republicans. Rather, it is a usually fairly predictable script.

If the Democrats really were just making things up to derail a nominee, then why didn’t they do it with Gorsuch?  Further, I would note that  Kavanaugh was not the most ideological candidate on Trump’s list.  The odds remain that Trump will get this seat, so stopping Kavanaugh only forestalls the outcome, it does not stop it (save, as I noted yesterday, through a series of improbable outcomes).

None of this speaks to the veracity of the claims against Kavanaugh, but it does put the charges in context   This is not normal nor is it some repetition of Republicans always getting the shaft on SCOTUS nominations.

 

FILED UNDER: Law and the Courts, Supreme Court, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Kathy says:

    If the Democrats really were just making things up to derail a nominee, then why didn’t they do it with Gorsuch?

    Evidently because they’re not just making things up.

    IMO, the GOP is mad as hell because the masses are getting uppity and rejecting their entitled nominee.

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  2. steve says:

    Kennedy was the judge eventually confirmed to take the spot for which Bork was nominated. The vote was 97-0. Two people were out campaigning and one was sick. 6 Republicans voted against Bork.

    While more recent votes have largely not been full of drama, there looks to be a trend of more people voting against a nominee. Having 20-40 people voting against someone is not unusual anymore. I think that is mostly signaling by politicians to their base. The nominees still get confirmed.

    Steve

  3. Daryl and his brother Darryl says:

    BREAKING…
    Rosenstein has resigned. Or was fired.

  4. Hal_10000 says:

    If the Democrats really were just making things up to derail a nominee, then why didn’t they do it with Gorsuch?

    I don’t think they’re making things up, but:

    1) there was an attempt to make hay out of a very weak plagiarism allegation against Gorsuch. And remember that the last few weeks have been filled with crazy claims about white power signs, weak charges of perjury and quotes taken out of context.

    2) Gorsuch was replacing Scalia. Kavanaugh is replacing Kennedy, who was perceived a swing vote and a critical vote on Roe (although in the last session, Grosuch and Roberts were to left of Kennedy).

    3) We are close to an election so both sides are looking to fire up their base. Plus, the Democrats feel that if they can push this past the election, they can either force a different candidate or push it to 2021.

    #2 and #3 are driving the intensity of this thing. If it weren’t for those two things, the Republicans would be more willing to delay the vote and I don’t think last night’s Farrow piece sees the light of day.

    But, switching back, it does seem, at minimum, that Kavanaugh’s youth was marked more by binge drinking and possible bad behavior than Gorusch’s. So there *is* a difference between the two nominees. But the weak claims that preceded this, the importance of the vote and the current political situation has amplified it to 11.

  5. @steve: As I noted the other day, it is clear that political polarization (and the post-1994 party realignment) has affected the voting.

    But the point being: confirmation still has largely been pretty smooth over the last several decades.

  6. @Hal_10000: Yes, politics is involved. It always is.

  7. James Joyner says:

    Things have clearly changed in the last 30ish years, in that the fights are much more partisan. But you’re quite right: smear campaigns and the like are simply not the norm.

    It’s worth remembering that Reagan’s nominee before Bork was Antonin Scalia, who was confirmed 98-0. Reagan’s nominee before Scalia, Sandra Day O’Connor, was confirmed 99-0.
    Kennedy, who filled the spot after the Bork fiasco, was confirmed 97-0. The next nominee, Souter, was a bit more controversial but still passed 90-9.

    That was followed by the Clarence Thomas debacle but he was incredibly controversial even before the Anita Hill allegations.

    But even after that, things were normalish. Ginsburg 96-3. Breyer 87-9.

    Roberts was contentious but still 78–22.

    Alito, at 58–42, was the first close vote after Thomas.

    And Republicans played ball on both Sotomayor and Kagen (68–31 and 63-37, respectively).

    Even Gorsuch was 54–45—which is pretty amazing considering he was filling the seat that by all rights should have been Merrick Garland’s.

    Kavanaugh had a lot of strikes against him even before the allegations. Because he would fill the Kennedy seat, he’s going to be a sea change. Plus, his background is simply more political than many of the recent nominees.

    I suspect Amy Coney Barrett, who’s younger and arguably more conservative, would sail through rather easily.

  8. James Joyner says:

    @Steven L. Taylor: It’s really hard to take the politics out of politics.

  9. @James Joyner: To quote a great philosopher: exactamundo.

  10. @James Joyner: And for further context, it is worth noting that Nixon had two nominees rejected (Carswell 45-51 and Haynsworth 45-55).

    Also:

    Rehnquist, 68-26
    Powell 89-1
    Burger 74-3
    Blackmun 94-0

    I think we (myself included), look to Scalia and O’Connor pre-Bork and say “look how non-contentious it was before Bork!” When the Nixon administration looks a lot more like the post-Bork years that the immediate pre-Bork years.

    Also:

    LBJ and Thurgood Marshall: 69-11

    Ike and Potter Stewart 70-17
    Ike and John Harlan 71-11

    etc.

  11. James Joyner says:

    @Steven L. Taylor:

    And for further context, it is worth noting that Nixon had two nominees rejected (Carswell 45-51 and Haynsworth 45-55).

    True. They were before my political consciousness but I gather they were both were extremely problematic. Carswell was a mediocrity, at best, and had several incredibly racist public statements during a political campaign and Haynsworth had substantial baggage. Indeed, a significant number of Republicans voted against them both.

    But, yes, there’s always politics in these things and they tend to heat up during particularly bitter times.

  12. Joe says:

    “perfididy” – best. word. ever.

    @James Joyner: I called Amy Coney Barrett over a week ago. I want the props if that happens.

  13. @Joe: Oops. Should have been “perfidy”–I wrote this post on my phone waiting for the DMV to open this morning.

  14. de stijl says:

    @Joe:

    Hidely ho, neighborino.

  15. Joe says:

    @Steven L. Taylor:

    I assumed it was just a typo, but it cracked me up, thinking of some overly-serious narrator pronouncing it. Just more perfididious behavior on my part!

  16. @Joe: 🙂

  17. @James Joyner:

    True. They were before my political consciousness but I gather they were both were extremely problematic.

    Mine, too (obviously). But this is kind of my point: so many folks base their understanding on the process on Reagan onward that they don’t realize the 99-0 and 97-0 weren’t the norm.

  18. Tyrell says:

    Well, the leaders of the Republicans and Democrats are not what we used to have either. Look at the past: Democrats had Truman, Johnson, Kennedy, Carter, Fulbright, Mills, Humphrey, Hollings, and Connally*. Republicans had Goldwater, Dirksen, Ford, Rockefeller, Dole, Reagan, Baker, Thompson.
    Time for a third party that is centrist and common sense – in touch with the regular working people.
    *John Connally – a leader who was almost assassinated by Lee Harvey Oswald (and maybe others).
    (I am now almost 95% un- Googled: faster operation and no spyware).