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Supreme Court Confirmation Process Is Becoming More Partisan and Prolonged
Trump Nominates Gorsuch, Democrats Prepare to Block
Failed Court Nominations is Nothing New
Sometimes Confirmations Are Unanimous…or Close
Uncertainty Surrounds Upcoming Gorsuch Hearing

Supreme Court nominations have been rife with partisan contention throughout history, and Neil Gorsuch’s confirmation hearing is shaping up to be no different. In this Court Report, legal expert Kenneth Jost examines the political posturing surrounding past Court nominations and what can be expected with Trump’s nominee.

Supreme Court Confirmation Process Is Becoming More Partisan and Prolonged

The partisan battle over President Trump's nomination of federal judge Neil Gorsuch to the Supreme Court is nothing new. The Senate began injecting raw politics into the Supreme Court confirmation process as early as the 1790s and has continued right up to the present day.

Typically, presidents have their way on filling vacancies on the high court, but through history one out of every five presidential nominees has failed to win confirmation. Many times, the confirmation process has been cut and dried, with the Senate's approval completed within a month or less after the nomination and often registered in unanimous or even non-recorded voice votes.

The process has become increasingly politicized and protracted since the mid-20th century, especially in the last 30 years. The bruising battle over President Ronald Reagan's nomination of the conservative federal judge Robert Bork became a watershed of sorts.

The Republican-majority Senate's rejection of Bork by a somewhat bipartisan 58–42 vote left Republicans and conservatives permanently embittered. It also gave senators of both parties and advocacy groups on all sides a roadmap of sorts to follow in backing or opposing nominees for the court.

Trump Nominates Gorsuch, Democrats Prepare to Block

President Obama nominated the veteran federal appeals court judge Merrick Garland to fill Scalia's seat, but the Republican-controlled Senate refused to act on the nomination in a presidential election year or even to convene a hearing for Garland. The GOP obstruction, unprecedented since formal committee hearings became established practice a century ago, left Democrats and liberal and progressive groups as embittered as Republicans have been in the post-Bork era.

President Trump tweaked the script a bit by announcing his selection of Gorsuch for the vacant seat in a prime-time television event on January 31 that was carried live by major broadcasting and cable networks. If confirmed by the Senate with its 52–48 GOP majority, Gorsuch would succeed the late justice Antonin Scalia, who died nearly a year earlier on February 13, 2016.

With the confirmation hearings approaching, Senate Democratic leader Chuck Schumer of New York was vowing to mount a filibuster to block a vote on Gorsuch. The Senate GOP leader Mitch McConnell of Kentucky would need 60 votes to overcome a filibuster unless he mustered Republican support for a rules change to allow a vote on a Supreme Court nominee with only a simple majority needed on the motion to proceed.

Failed Court Nominations is Nothing New

Among the unsuccessful nominees of the recent past, one was blocked by a filibuster: Abe Fortas, nominated by President Johnson in 1968 to be elevated from associate to chief justice. Fortas drew opposition from Republicans and southern Democrats because of his role in liberal Warren Court decisions, continuing role while on the court as political adviser to Johnson, and acceptance of outsized fees for speaking engagements. Following four days of debate, Senate Democrats fell 14 votes short, in a 45–43 split, of the number needed to bring the nomination to a vote.

Bork was the 12th nominee in history to be formally rejected by a Senate vote. The first was John Rutledge, nominated by President George Washington in 1795 to be elevated from associate to chief justice after John Jay's resignation from the center seat. Rutledge failed on a 10–14 vote based on his criticism of the post-independence treaty that Jay had negotiated with Britain; Rutledge voiced regret at the lack of concessions from Britain in the compact. He continued to serve as associate justice until his death in 1800.

Issues unrelated to the Court's work have doomed other nominations. President Andrew Jackson's nomination of his secretary of the treasury, Roger Taney, as associate justice in 1835 failed because of his opposition to the national bank. The Senate voted 24–21 to postpone action on the nomination, but Jackson succeeded later that year in appointing Taney as chief justice after the death of John Marshall. Four decades later, President Ulysses Grant withdrew his nomination of Caleb Cushing as chief justice based on criticism of what was seen as Cushing's inconsistence on states' rights and slavery in the lead-up to the Civil War.

The unsuccessful nominations of the 20th century have turned on more directly legal issues. President Herbert Hoover's nomination of federal judge John J. Parker went down to defeat by the Republican-controlled Senate in a 39–41 vote after labor unions criticized his rulings on labor issues and the NAACP lobbied against him because of his record on racial issues. A Democratic-controlled Senate rejected two of President Richard M. Nixon's nominees in 1969 and 1970 to fill the seat vacated after Fortas resigned over ethics issues. Federal appeals court judge Clement Haynsworth failed on a 45–55 vote over conflict of interest issues; Nixon's second choice for the seat, federal district court judge G. Harrold Carswell, went down to 45–51 defeat based on criticism of his previous support for racial segregation and his unimpressive legal credentials.

Sometimes Confirmations Are Unanimous…or Close

Even with the increased politicization of the confirmation process, several recent justices gained their seats without stirring opposition. Byron White, the first of President John Kennedy's two appointees, was confirmed by voice vote in 1962 just 12 days after the nomination. Later that year, Arthur J. Goldberg was similarly confirmed by voice vote just four weeks after his nomination.

Nixon's third choice for Fortas's seat, Harry A. Blackmun, was confirmed 94–0. After Bork's defeat, Reagan chose a young federal appeals court judge, Anthony M. Kennedy, for the seat, and the Senate confirmed him in a 98–0 vote. Other recent justices confirmed in unanimous recorded votes include John Paul Stevens in 1975, Sandra Day O'Connor in 1981, and Antonin Scalia in 1986. Scalia benefited from Senate Democrats' focus on the higher-stakes fight to defeat Reagan's elevation of William H. Rehnquist from associate to chief justice. Despite the pitched battle, Rehnquist was confirmed by a vote of 68–26.

No justice has won unanimous confirmation since Kennedy. David H. Souter drew nine no votes in 1990 from Democrats worried about his stance on abortion rights. Ruth Bader Ginsburg drew three no votes in 1993 from Republicans opposed to her liberal views; her fellow Clinton appointee, Stephen G. Breyer, was confirmed 87–9 after opposition from a handful of Republican senators over his investments in the British insurance giant, Lloyd's of London

Besides Ginsburg and Breyer, the other six current justices also won confirmation on divided votes, all of them by closer margins. Clarence Thomas was narrowly confirmed 52–48 after the tumultuous confirmation hearing marked by close questioning of his views on abortion and the tumultuous sexual harassment allegations from his former aide, law professor Anita Hill. John Roberts was confirmed as chief justice in September 2005 by a 78–22 vote, with half of the Senate's 44 Democrats voting against him because of his conservative record in the Reagan White House. Four months later, Samuel A. Alito Jr. was confirmed by a closer 58–42 vote after Democrats attacked his record on the federal appeals court as too anti-consumer and anti-worker.

Republicans came up short twice as the Democratic-majority Senate confirmed President Obama's first two nominees to the court: Sonia Sotomayor and Elena Kagan. Sotomayor was confirmed 68–31 in Obama's first year in office in 2009; Kagan, 63–37, a year later. Republican senators grilled both nominees closely for their views on a range of legal issues, but it was all for show given the Democrats' effective 59–41 majority in the chamber.

Uncertainty Surrounds Upcoming Gorsuch Hearing

Republicans open the Gorsuch hearing with a narrower, 52–48 edge over Democrats, who have vowed to question him closely about his views and record on the bench as a judicial conservative. In the current politically charged climate, they will also question Gorsuch's ability to be independent of the president who picked him for the court seat. For their part, Republicans will echo Trump in praising Gorsuch's academic and professional credentials: degrees from Columbia, Harvard Law School, and Oxford; and 10 years on the federal appeals court based in Gorsuch's home state, Colorado

For now, the court itself continues to hear and decide cases with one vacant seat. Republican leaders are planning to have Gorsuch in place in time to join the court for its final weeks of oral arguments in late April. But Democrats are in a position at least to delay confirmation or, even possibly, block action altogether unless Republicans change the rules to allow a simple majority to force a floor vote they seem poised to win.

 

Document Citation
Kenneth Jost, Supreme Court Confirmation Process Is Becoming More Partisan and Prolonged, CQ Supreme Court Collection (2017), http://library.cqpress.com/scc/cqelsc-1619-102343-2775256.
Document ID: cqelsc-1619-102343-2775256
Document URL: http://library.cqpress.com/scc/cqelsc-1619-102343-2775256