In his obituary (2/13/16) for Supreme Court Justice Antonin Scalia, New York Times Supreme Court correspondent Adam Liptak wrote:
Though his conservative views were well known, he was confirmed by the Senate by a vote of 98 to 0. He may have benefited from the fact that the liberal opposition was focused on the nomination of Justice William H. Rehnquist, who was already on the court, to succeed Chief Justice Burger….
The lopsided vote for Justice Scalia also reflected a different era, one in which presidents were thought to have wide latitude in naming judges. That era seemed to come to an end in 1987, with the defeat of the nomination of Justice Scalia’s former colleague on the DC Circuit, Judge Bork.
It’s true that there was an era when the Senate almost always gave near-complete deference to presidents’ judgment in naming Supreme Court justices; from William McKinley through John F. Kennedy, almost all nominees were confirmed, generally by voice vote. When there was a recorded vote, margins of confirmation were typically wide, as with FDR’s William Douglas (confirmed 62–4) or Eisenhower’s John Harlan (71–11). The only nominee to be rejected during this seven-decade era was Herbert Hoover’s choice of Judge John Parker in 1930, whom the NAACP lobbied against because of his opposition to African-American suffrage. (Parker was also seen as anti-labor.)
That era came to an end not in 1987 with Bork, but in 1968 with Lyndon Johnson’s nomination of Abe Fortas, already a member of the Supreme Court, to be chief justice after the announced resignation of Earl Warren. Fortas was viewed as a liberal member of the court—he was in the 5–4 majority for the decision that gave us Miranda rights, and authored Tinker v. Des Moines, which affirmed that high school students are protected by the First Amendment—and was accordingly opposed by a coalition of conservative Republicans and Southern Democrats who resented the Supreme Court’s repeated rejection of segregation. Fortas’ nomination was successfully filibustered; the fact that 1968 was an election year and Republicans looked likely to retake the White House factored in to political calculations.
After Richard Nixon did in fact become president in 1969, he pressured Fortas to resign, threatening to have him impeached over outside income he received as a justice. In part as a reaction to this high-handed behavior, Nixon’s choice as a replacement, Clement Haynsworth, received strict scrutiny for his anti-integration rulings, as well as for a conflict of interest in an anti-union ruling. Haynsworth was rejected, 45–55. Nixon’s subsequent spite nomination of segregationist G. Harrold Carswell—famously defended by one senator with, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they?”—also went down, 45–51.
Nixon’s third-time’s-the-charm nomination of Harry Blackmun sailed through 94–0. Significantly, this was the first time since 1874 in which a recorded Senate vote on a Supreme Court nominee didn’t include a single negative vote. That was the precedent that was generally followed with the nominees between Blackmun and Scalia, with virtually unanimous confirmation for Nixon’s Lewis Powell (89–1), Ford’s John Paul Stevens (98–0) and Reagan’s Sandra Day O’Connor (99–0). Only William Rehnquist—another opponent of civil rights and minority voting—received significant opposition during this period, in his nominations to the Supreme Court (68–26) and as chief justice (65–33). So Scalia was the beneficiary of a tradition that dated back to 1969.
There’s a lot of mythology about the Bork nomination: that it was unfairly torpedoed by liberal interest groups (FAIR Media Advisory, 7/21/05), that he was a victim of slanted press coverage (Extra!, 8/09), even that overzealous Democrats had tried to subpoena his video rental records (Extra! Update, 4/99). None of this is true; in fact, Bork was rejected because of his extreme and rather bizarre interpretations of the Constitution, as exemplified by his assertion that “constitutional protection should be accorded only to speech that is explicitly political” (Indiana Law Journal, Fall/71).
The new tradition of going along with the president’s choice unless there is a serious fight didn’t end with Bork; Anthony Kennedy, who eventually replaced him as Reagan’s final Supreme Court pick, was confirmed without opposition, 97–0. With the exception of Clarence Thomas, who squeaked in 52–48, the nominees of George Bush Sr. and Bill Clinton—David Souter (90–9), Ruth Bader Ginsburg (96–3) and Stephen Breyer (87–9)—each had less than 10 percent of the Senate voting against them. (Thomas, of course, was opposed for numerous legitimate reasons.)
Only in the post–Gore v. Bush era, after the Supreme Court’s conservative majority took it upon itself to select the president of the United States, has it become routine for Supreme Court nominees to face significant opposition based on ideology—with John Roberts (78–22), Samuel Alito (58–42), Sonia Sotomayor (68–31) and Elena Kagan (63–37) each having one-fifth to two-fifths of the Senate voting against them. That’s the “different era” that began quite a while after Scalia was confirmed unanimously—and which will likely give whoever Barack Obama nominates to replace Scalia a tough road to confirmation.
Jim Naureckas is the editor of FAIR.org. Follow him on Twitter: @JNaureckas.
John Q
Thanks again, Jim Naureckas, for digging out the numbers and providing another fine piece of journalism. You would think the New York Times, which I pay to read over my breakfast, would do a piece on Senate votes for Supreme Court nominations, but not yet. Instead, FAIR provides it free.
Since five Republican “justices” chose a U.S. President all by themselves, however, it seems unlikely that any Democratic President can fill a Supreme Court vacancy with a Republican majority in the Senate. Obviously, we need to change the rules. In the best of all worlds, we would abolish the Senate altogether, where a Wyoming member represents 600 thousand people and a California member represents 39 million.
Padremellyrn
As always, of late, the (self Id’d) conservative side is all about them being the Publics Master, not the Public Servants they are supposed to be. We know they are willing to shut down anything that would benefit the public, unless it benefits 10 to 100 times more, their corporate lords. There is an old saying ‘The more things change, the more they remain the same’, and it looks like we heading back to the Dark Ages and Feudalism. This is part and parcel of the fights we see where they are trying overturn the last 2 centuries of progress in The Congress and the Courts. They have major control of the Media, and as FAIR, along with other progressive sites have noted, the Working man has little to no time or inclination to do the research the Major Media outlets are not doing. Thus we have too many working class who vote for their own demise, and “Two minute Hates against Goldstein and the Brotherhood” are doing their job, making the working man ‘think’ they know who the enemy is.
With all that said, we know that the fight for anyone Obama is going to pick, is going to be contentious and filled with lies, misinformation and “Un-facts” (those facts that people like LImbaugh and O’Reilly come up with on their own, and then inject into the discussions).
One can only hope that Bernie wins, for more reasons than just he is the better candidate, but also for the fact that is would do more damage to the over stuffed shirts in Congress, in particular Ryan, McConnell, Cruz, Bachmann, Cotton and other Tea Party members who no longer wish to do their jobs.
Even if we get a truly ‘centrist’ candidate, that would be far better then the conservative leaning group we have running the show so far.
JamesT
John Q, you seem like changing the rules when the result doesn’t end up in your favor. Even to the extreme of abolishing the U.S. Senate and thus re-writing the Constitution itself. Not hard to figure out your political leanings. Totalitarian governments must make you wet your pants with glee.
JohnEllis02
The laboring-class lower half of society has no wealth, as they have no funds to hire the politicians needed to protect their wealth.
The laboring-class has no liberty, as they cannot afford to hire the politicians needed to gain liberty.
JohnEllis02
WOE IS THIS PLACE
For the top forth of society, the rich ruling class, they would not be seen dead in this place, as they send their paid actors down here to destroy the place,
For the lower-half of society, the impoverished and uneducated laboring-class, just look at this worthless article how it would drive them far away from your place.
For the educated middle-class, my how they love this place, for neither are they ridiculed by the rich nor made to feel guilty by the laboring-class poor, just pure mutual gratification for them and if your entertainment is not up to par, surely they will ignore you all the more.
John Q
James T: I should not have combined my distaste for the current GOP with the idea of abolishing the Senate. My comment was non sequitur, but then, so was your notion that abolishing the Senate would lead to totalitarian government.
h
my son is also named bork
steve
@John Q
I agree with you that our democracy would be helped if the Senate were re-invented or abolished created a national unicameral legislature. The upper house is an echo of the House of Lords where, until just recently, anyone born into the peerage had a claim on a seat; at least, in Britain, there’s no delusion that it’s a democratic institution.
One man, one vote was the decision of the Supreme Court in the 1964 case, Reynolds vs Sims. As a result all bicameral states had to have their state senate reflect proportional representation rather than geographic, i.e., one man, one vote, so that rural areas with low population couldn’t dictate policy to cities in the same state. Unfortunately the Court imposed de jure democracy only on the States…the US Senate continues as the most basic undemocratic institution in the country.