Mitch McConnell made a mistake by announcing that the Senate would not allow a vote on any nominee that President Obama is going to make for the Supreme Court. It instantly gave Democrats ammunition. “How dare they!” cried Chuck Schumer, right before footage emerged of him planning to obstruct any SCOTUS nominee George W. Bush might make in 2007. Obama bristles now about the behavior of the Republicans suggesting they’d deny him a nominee, even though he tried to filibuster a vote on Samuel Alito. Let’s not pretend this is about principle on either side. It’s about the balance of power, and the Supreme Court has been a political football for decades. This is where both sides are gleefully, unabashedly partisan and hypocritical.
The death of Antonin Scalia was unexpected and dramatic. It’s been a 4-4 court for almost a decade, with Anthony Kennedy as the tie-breaker, breaking more often than not for the Scalia side. Of course the Republicans are going to balk at Obama picking a third Supreme Court justice which would tip the scales firmly on the liberal side until a Republican becomes president again.
“But the people elected Obama in 2012. He has a right to appoint a new Justice!”
“Yes, and the people elected a Republican majority in the Senate in 2014. They have a right to block it!”
For the Senate to block or refuse a Supreme Court nominee is not a new thing. Nor is it rare for the Supreme Court to not have nine judges. It was the Judiciary Act of 1869 that set the number. FDR once tried to add more but Congress stopped him because they viewed it as his method to stack the Court with justices that would decide cases how Roosevelt wanted. Whenever there’s been a vacancy, the Court has continued, as each new vacancy tends to take several months to fill.
Before I continue, I need to say that even if there was a tradition of the past 80 years for the president not to appoint a judge to SCOTUS in a lame-duck year, it would only be because the opportunity hadn’t come up. And as Schumer and Reid made clear in 2007, they would have fought tooth and nail to honor this “tradition” if that had been the year Scalia or Thomas had decided to retire.
On January 4, 1940, FDR nominated Frank Murphy to the Supreme Court. You could argue this was not a lame-duck move, as FDR was running for an unprecendented third term. Murphy was confirmed within two weeks. I guess that’s not in the last year, as the president is sworn in on January 20. Before 1937, it was on March 4.
In 1968, Chief Justice Earl Warren announced his retirement, which would be effective as soon as his successor was confirmed. President Lyndon Johnson appointed associate justice Abe Fortas to that position, and Homer Thornberry as the new justice. The Senate had been upset with recent rulings of SCOTUS, and Fortas became the first Supreme Court Justice to testify before the Senate. He was questioned about his cozy relationship with LBJ. The Senate attempted to filibuster the nominations, but the vote was barely enough to prevent it. Nevertheless, Fortas asked LBJ to withdraw his nomination. Thornberry also withdrew, and LBJ never made another one. Warren stayed on through the election, and new president Nixon nominated Warren Burger.
Nixon had the opportunity to nominate a second justice in 1969, but his first two nominees–Clement Haynsworth and G. Harrold Carswell–were rejected by the Senate. The Supreme Court had a vacancy for a full year until Nixon was able to get his third pick, Harry Blackmun, on the Court. After that, SCOTUS was able to go 17 years without controversy in the Justice-nomination process. Overwhelming majorities confirmed Lewis Powell Jr. (Nixon), William Rehnquist (Nixon), John Paul Stevens (Ford), Sandra Day O’Connor (Reagan), and Antonin Scalia (Reagan).
Then Robert Bork happened.
Bork is why the Senate has been a pit of vipers over the Supreme Court nomination process ever since. Less than an hour after Reagan announced that Bork was his selection, Ted Kennedy made this speech:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Joe Biden, then head of the Senate Judiciary Committee, wrote up a scathing brief of Bork. Animosity and mistrust swirled between Democrats and Republicans, and the Democratic senate ultimately voted against his confirmation. Reagan then appointed Douglas Ginsberg, but he withdrew before a vote since it looked like he would be rejected after admitting he’d smoked marijuana in college. Anthony Kennedy was later confirmed 97-0. Biden, Al Gore, and Paul Simon missed the vote.
When David Souter was nominated by George HW Bush, Ted Kennedy and John Kerry denounced him as too right-wing. Ironic, since Souter became a reliably liberal vote on the Court. Clarence Thomas was Bush’s next nominee, and his nomination process may have been the ugliest yet. I will never forget when Thomas testified he would rather be dead than go through what he’d gone through. At the central of his controversy was Anita Hill’s accusation that he’d sexually harassed her. Thomas was barely approved 52-48.
Ever since Bork, Supreme Court justice nominees have done their best to make it through Senate hearings without sharing many of their personal views. The grilling is something to survive. Clinton’s two nominations – Ruth Bader Ginsberg and Stephen Breyer – sailed through. George W. Bush’s first nominee – John Roberts – was opposed by Ted Kennedy, Chuck Schumer, Joe Biden, and Barack Obama, but he made it through the Senate with a 78-22 vote. Bush’s next nominee was Harriet Miers, but she was criticized on both sides for being unqualified. She withdrew before votes could be cast.
Samuel Alito was Bush’s next appointment, and his nomination was fought along partisan lines. John Kerry led a filibuster effort, supported by Barack Obama. The lasting image I have from Alito’s hearing is his wife breaking down in tears, and Lindsey Graham offering the Alitos an intense apology for the poor conduct of his colleagues. He was ultimately confirmed.
Obama has nominated Sonia Sotomayor and Elena Kagan. They had token opposition in the Senate, and the majority of Republicans voted against both of them, but they made it to SCOTUS fairly easily.
But the thought of Obama appointing a third Justice? Well, that’s just too much. Ginsberg, Breyer, Sotomayor and Kagan have formed a liberal bloc, while Thomas, Alito, and usually Roberts have formed a conservative bloc, with Kennedy as the center-right swing vote. You have four Democrat appointments, and four Republican appointments. Of course Obama is going to want to get his choice on the Court. Of course the Republican majority is going to fight it. Anything else would be political malpractice.