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Tracing the history of partisanship in Supreme Court confirmations

August 12, 2009 — So Judge Sonia Sotomayor was confirmed to the U.S. Supreme Court by a vote of 68 to 31, but only nine Republicans (or 22.5% of their total) voted for her.  Critics claim their “nay” votes were due to partisanship, not her qualifications.  Republicans argue that Democrats engaged in a similar behavior by torpedoing President’s Bush’s judicial nomination of Miguel Estrada. 

It’s worth looking at the history of the process.  Have these nominations always been political party confrontations?  If not, when did the process break down?  And who is responsible for these fights?

Years ago, while at Trinity University in San Antonio, Texas, I attended a lecture by Judge Robert Bork.  Though he had been recently defeated in his nomination, he seemed eager to put the process behind him.  But his ideological views had not changed.  It made me wonder when the nomination of judges such as Bork became liberal-conservative shootouts.

Since 1789, 160 nominations have been sent by a president to the United States Senate.  Seven declined to serve when nominated, bringing the total number to 153.  Of those, 123 (or 80%) were confirmed), a higher number than most people would expect.  But the percentage confirmed (and the margins of victory for those confirmed) have been far smaller in recent years.

That process changed back in 1968, when President Lyndon B. Johnson sought to elevate liberal Supreme Court Justice Abe Fortas to replace retiring Chief Justice Earl Warren.  He also picked Homer Thornberry to replace Fortas as an associate.  Conservatives and Republicans successfully filibustered the nomination, leaving the choice of Warren's replacement to Richard Nixon, who picked Warren Burger for the job.

Liberals got even when Fortas’ position came open.  They torpedoed the nomination of Clement Haynsworth Jr. for allegedly being a segregationist, and G. Harrold Carswell on grounds that he was a “mediocre” judge, leading Nebraska Senator Roman Hruska to quip “there are a lot of mediocre Americans out there…don't they deserve some representation on the court?”  Finally, the more centrist Harry Blackmun was confirmed.

The partisan battles didn’t end there.  While many Republican nominations sailed through the Senate without a serious fight (Powell, Stevens, O'Connor, and even Scalia, who won 98-0), Bork was defeated due to his views, not because he lacked qualifications.  Clarence Thomas squeaked through after his nomination became a referendum on sexual harassment instead of his judicial philosophy.

While John Roberts won confirmation with more than 75%, about half of the Democrats in the US Senate voted against him.  Qualified judge Samuel Alito Jr. won only after a relatively narrow 58%-42% margin.  You’d have to go back to the 1800s to find someone who won a nomination with less that 65% of the vote, outside of Clarence Thomas.  It’s worth noting that Barack Obama voted against both Bush nominees.

In fact, if you count Senate rejections and withdrawals (like Douglas Ginsburg and Harriet Miers), only 68% of nominations succeeded between 1968 and 2008.  While conservatives may deserve some blame for “starting” it all by defeating Fortas and Thornberry with a filibuster, liberals have exacted a terrible revenge, stopping several additional nominations and nearly knocking off two others.  No wonder many in the GOP cast a “no” vote on Sotomayor, despite her having the necessary resume for the job.