On October 23rd, 1987, the Senate voted (58-42) to legalize gay marriage.
If you’re scratching your head, wondering how that could be possible, bear with me. That vote was on the confirmation of Robert Bork as a Supreme Court Associate Justice, and it was an opening salvo of a new era of partisan politics surrounding the Supreme Court. By rejecting Bork (and his first replacement appointee, Douglas Ginsburg) essentially for partisan political reasons, the Democratic Senate majority forced President Reagan to move to the center on his political appointees. He ultimately settled on Anthony Kennedy, a well-regarded moderate and stark contrast to Reagan’s previous successful nominee, the recently deceased Antonin Scalia. Kennedy, who Reagan aides feared at the time was too liberal on gay rights, would go on to write the majority opinion in Obergefell v. Hodges, which legalized same-sex marriage in the entire United States in 2015.
This is the power of the Supreme Court, and the prospect of ground-shattering change from the bench is the pot at the end of the rainbow that inspires hardball partisan politics at contested confirmation proceedings. The unfortunate passing of Associate Justice Scalia two weeks ago has thrust this issue once again into the spotlight, and this partisanship has flared up, true to form. Shortly after Scalia’s passing, Senate Majority Leader Mitch McConnell (R-KY) declared that Senate Republicans will refuse to allow confirmation hearings until the next president is sworn in in early 2017. President Obama promised he would, regardless, nominate a “very well qualified” candidate within a few weeks, while Sen. Elizabeth Warren (D-MA) accused Republicans of violating their own Constitutional principles. Pundits debated whether or not the GOP would suffer a backlash for its obstructionism, and continue to argue back and forth over whether Obama will eventually get a nominee through.
But amidst all this chatter, lacking is a good analysis of the history of the relevant history of partisanship in Supreme Court nominations. How effective is it? Has one party used these tactics more than the other? What rights does the president really have? Is the system working?
The Constitution says rather little on the Supreme Court, but it says enough to settle one of those questions: the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.” In short, Obama has the right to nominate all he wants, but nobody can get on the court without a successful Senate confirmation vote. The idea that Senate Republicans are violating their purported Constitutional principles by opposing any Obama nomination is bunk. So is the idea that an outgoing president can’t nominate in his final year in office, as is the idea that it’s wrong for a protracted vacancy to exist on the Court. The Constitution makes no stipulation as to the number of justices the court must have.
The record is similarly clear that neither party has a monopoly on Supreme Court obstructionism. In fact, the way the cards have fallen, the Democrats happen to have, on paper, a worse record. But this is only a reflection of circumstance; Democrats have frequently held the Senate when Republican presidents had vacancies to fill. In contrast, this is the first time since 1888 (well before American politics assumed its current contours) that a Democrat has had to fill a vacancy while the Republicans controlled the Senate. In principles, the parties are identical. Both are willing to do whatever it takes to influence a key Supreme Court appointment.
And this makes sense. For people my age, the appointment of a liberal justice in place of Scalia would be the most significant moment in American politics of our lifetimes. Just think back about some of the 5-4 decisions of recent years:
Bush v. Gore
District of Columbia v. Heller
Citizens United v. Federal Election Commission
Ashcroft v. Iqbal
Shelby County v. Holder
All of those could have gone the other way if the Democrats had prevented the nomination of any of the conservative justices voting in the majorities in each case. And all but one would be ripe for overturning if the balance were to swing the other way. In short, a different 5-4 split means a different America.
Supreme Court nominations usually take place when the party controlling the presidency has also controlled the Senate. This was true for Ginsburg, Roberts, Sotomayor, Kagan, Breyer, Scalia, and Alito. It was not true, however, for Kennedy, Souter, and Thomas, all of whom were nominated by Republican presidents who needed to get them through Democratic Senate majorities.
So how did that go? The record shows the Democrats wielded their control of the Senate to meaningfully impact the presidents’ appointments. After the resignation of Lewis Powell in 1987, the Democrats rallied to oppose Reagan’s nominees, preventing the appointments of conservative judges Robert Bork and Douglas Ginsburg, as mentioned at the beginning of this article.
After Justice William Brennan resigned, President George H.W. Bush felt obligated by the Bork experience to nominate someone with a very light record. He chose David Souter, who billed himself as a moderate and whose supposed conservative bonafides were mostly personal recommendations by politicians from his native New Hampshire. Democratic control of the Senate here tripped Bush into a major error; by the end of the decade, Souter had fleshed out his opinions, and he was a consistent liberal.
Finally, in the case of Clarence Thomas, the Democratic leadership did everything it could to prevent his appointment, and nearly succeeded. His nomination was ultimately approved 52-48, the narrowest margin in over a hundred years. Most Democrats voted against him, but 11 of the 55 Democratic Senators voted in favor; some were conservative Democrats, while others lived in states with many African-American voters and feared political consequences of voting against Thomas.
Currently serving Democrats don’t have a great record, either. In 2005, then-Senator Obama said of John Roberts, “There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land,” but voted against him anyway. He said that, although he agreed with Roberts on “95% of the cases, what matters on the Supreme Court is those 5 percent of cases that are truly difficult.” Obama later joined Senate Democrats in trying to filibuster the confirmation of Samuel Alito. By this standard of even 5% disagreement disqualifying a potential justice, it’s hard to imagine how Republican Senators could possibly support anyone Obama would be willing to nominate.
In 2007 New York Senator Chuck Schumer (who is likely to be the Democrats’ next Senate minority leader), declared that Democratic Senators would block any Bush nomination. This never got to be tested, though if Scalia, sensing an imminent Democratic victory and fearful of his health through the next eight years, had resigned then, it would have been. Had any justice passed away in the last two years of Bush’s time in office, we would have been in the same situation we are in now.
To conclude, the case is clear that Supreme Court justice nominations, and this one especially, are significant enough that it makes sense for Senators to play hardball with them. The potential payoff is so great that it is absolutely worth risking increased bitterness across party lines and exasperation from voters. Democrats have done this, and threatened to do this, in the past, with very meaningful results; no party has a monopoly on such tactics. Republican obstructionism in this case may result in forcing Obama to appoint a moderate justice, or an unprecedentedly long vacancy.
Moreover, this is the system working. The system is devised to give both the president and the Senate a chance to say their piece, and whatever your position, they sure are saying it. And if the American people don’t like it, they, too, will get their say come November.