The Supreme Court Meets The Swamp
With great fanfare – and some made-for-TV suspense – President Donald Trump on Monday night announced in primetime that he would nominate federal appeals court Judge Brett Kavanaugh to the Supreme Court. Although the president only put Kavanaugh’s name forward less than 48 hours ago, it’s a safe bet that his confirmation will be a bitterly fought, highly partisan battle in the U.S. Senate. Working within the thinnest of margins and presuming complete Democratic opposition, Senate Majority Leader Mitch McConnell (R-Ky.) cannot afford to lose any of his Republican colleagues’ votes if the Senate is to send Kavanaugh to the bench.
Although it is true that American politics have always been divisive, it hasn’t always been like this. For most of the United States’ history, both parties approached Supreme Court appointments with enormous reverence and deference to the president.
The Senate confirmed the first five U.S. Supreme Court justices on Sept. 24, 1789. Each justice was confirmed by a voice vote, a legislative procedure effectively the same as unanimous acclimation. Lest you think the senators of the First Congress of the United States were uniquely unified as a result of their recent triumph over the British, four of President Abraham Lincoln’s five nominees to the Supreme Court were confirmed by unanimous voice vote, as were most of President Franklin D. Roosevelt’s – who tried to pack the Court in 1937 – and the two named by President John F. Kennedy.
The last time the Senate was able to confirm a Supreme Court justice by unanimous voice vote was July 25, 1965, when Abe Fortas was confirmed as an associate justice. Just three years later, the politicization of Supreme Court nominations began following President Lyndon Johnson’s nomination to elevate Fortas to chief justice.
The Senate stopped that idea cold. After it was revealed that Fortas secretly briefed President Johnson on Supreme Court deliberations and was earning a sizable stipend by teaching a college course, senators – led by conservative-leaning Republicans – successfully filibustered Fortas’ nomination. (A Senate filibuster refers to when a measure fails to earn the 60 votes needed to end debate and move to a final vote.) Fortas remained on the court for a few months in his capacity as an associate justice, but left in 1969 under the threat of impeachment.
That’s when Democrats got their revenge, rejecting President Richard Nixon’s first two choices to replace Fortas. After Nixon’s third nominee, Harry Blackmun, was confirmed by a 94-0 vote in 1970, the nominations process temporarily returned to historic norms. Even though the Senate never again used the voice vote mechanism, the next five individuals elevated to the nation’s highest court – including the late conservative giant, Justice Antonin Scalia – made it through the confirmation process relatively unscathed. Indeed – and, in the current context, somewhat shockingly – Scalia was confirmed to the Supreme Court by the Senate in a sweeping, 98-0 vote.
And then President Ronald Reagan nominated Robert Bork to replace Nixon appointee Lewis Powell.
As The Washington Post explained, more than 300 groups united in a public campaign to oppose Bork. It was the first court-related grassroots movement of its kind, and set the precedent for the type of campaign we’re likely to see outside groups spend tens of millions of dollars on to support or derail Kavanaugh’s nomination over the next few months. The groups accused Bork “of such things as favoring poll taxes to keep blacks from voting and allowing industrial companies to sterilize child-bearing women.” The attacks were highly personal – and highly effective – and on July 7, 1987, Democratic senators defeated the nomination on a 42-58 vote. (Two Democrats actually voted for Bork.) The Senate eventually replaced Powell in November 1987 by voting 97-0 to confirm Anthony Kennedy to the bench – the same man Brett Kavanaugh is hoping to replace.
In a book published in 1997, Bork argued his opponents won the battle, “but the war in both our legal and general culture goes on.” He predicted, “There will be more blood at the crossroads where law and politics meet.”
He was right. When George W. Bush won the White House, senators took the battle the lower courts. During President Bush’s first term, Senate Democrats filibustered ten of the president’s lower court nominees. Republicans threatened to end the filibuster for nominees, a sabre rattle referred to in Washington parlance as “the nuclear option,” but in 2005 the two parties reached a deal that allowed some nominees to move toward confirmation in exchange for the GOP standing down on the rules change.
While Brett Kavanaugh never was filibustered when President Bush nominated him in 2003 to the United States Court of Appeals for the District of Columbia Circuit, Democrats successfully stalled his nomination for three years. The Senate didn’t confirm Kavanaugh until May 2006, and then did so by a relatively narrow 57-36 vote. (One Democratic senator still in office today, Tom Carper of Delaware, voted to approve Kavanaugh’s nomination.)
The nominations war intensified once President Barack Obama took office.
Democrats occupied 57 seats in the Senate during President Obama’s first two years in office and just 51 from 2011 to 2013. Without the 60 votes needed to break a filibuster, Republicans retaliated for the treatment of the Bush nominees, using the blocking mechanism to stop Obama nominations. Democrats responded to the challenge by doing what the GOP had threatened to do years earlier: ending, in November 2013, the use of filibuster for lower court nominations and for executive branch nominations. They stopped short, however, of invoking the nuclear option for Supreme Court nominations.
Many Democrats now rue that decision. When conservative Justice Antonin Scalia unexpectedly passed away in early 2016, it created an opening on the court for President Obama to fill – an opening that had the potential to reshape the court’s ideology for a generation. Republicans, now in charge of the Senate and hoping to be dealing with a Republican president after the 2016 election, refused to schedule a vote on Obama nominee Merrick Garland, arguing that the winner of the 2016 presidential election should nominate Scalia’s successor. As we know, President Trump won the election and with it the chance to fill the vacancy. When Democrats tried to filibuster Trump nominee Neil Gorsuch, Senate Majority Leader McConnell pressed the red button and invoked the nuclear option. The filibuster for Supreme Court nominations was dead, and Gorsuch was confirmed by a vote of 54-45.
The U.S. Constitution does not outline any qualifications to be a Supreme Court justice. In fact, an individual doesn’t even have to be a lawyer (Justice Robert Jackson, who served on the court in the 1940s and 1950s, didn’t have a law degree). The founders gave wide deference to the president to choose the people he saw fit for the court and, for most of American history, the Senate honored the presidents’ choices, regardless of party affiliation.
No more. The confirmation process for Supreme Court nominees, perhaps the last remaining relic of a more civil discourse in our political system, is now just as toxic as most any other political issue.