Max Wagner '19
Since November, there has been one refrain repeatedly heard from all Democrats and Mainstream Media Outlets (but I repeat myself): Gorsuch simply cannot be allowed a vote because the Republicans “stole” the seat from President Obama. Is this the case? Is there more to the story? What was really stolen: the SCOTUS seat, or the narrative?
The narrative that is being told, again and again, is that the seat was “stolen” and that nuking the filibuster is particularly destructive.
This is a question that has no real definitive answer, since there have not been many Supreme Court vacancies that have occurred during an election year; but I would maintain that it has not. The last vacancy that opened in an election year (or was announced to be opening) was in 1968, when Chief Justice Burger announced his retirement from the bench, although he would not retire until the next summer, when the new president nominated a replacement. When the Chief Justice announced his retirement, then-President Johnson nominated Associate Justice Abe Fortas to the Chief Justice Seat, and nominated Judge Homer Thornberry to fill the seat which would be left by Justice Fortas. Both Republicans and Democrats had significant reservations about this move. Within a week of his nomination it seemed unlikely that Justice Fortas would receive the necessary votes to become Chief Justice, so President Johnson changed his plan; instead of trying to get Justice Fortas confirmed, he would try and get a majority of the Senate to vote for cloture. A task he barely managed to accomplish. While this was technically a Filibuster of a Supreme Court pick, it was both bipartisan, and several of the Senators voting no on cloture were adamant they were not permanently voting against cloture, they just wanted more time to debate the candidate. Shortly after this, President Johnson, at the request of Justice Fortas, withdrew the nomination to the Chief Justice seat. This led to the withdrawal of Judge Thornberry’s nomination since Justice Fortas’ seat would not be open.
The next most recent vacancy during an election year occurred on October 15, 1956, when Justice Milton retired from the Court. The Senate was in recess, and President Truman exercised his authority to make a recess appointment. In January of the following year the nomination became official, and on March 19, 1957, Justice Brennan was confirmed by voice vote.
Prior to Brennan’s confirmation, the last time a vacancy that arose in an election year was filled by the sitting president, was 1932. Justice Holmes retired in January of that year, and President Hoover nominated Benjamin N. Cardozo, confirmed – you guessed it – by a voice vote.
While there are some examples of Supreme Court appointments in election years, they are nearly universally nominated late in the year preceding the election year or early in the election year, and usually result from a vacancy the year before. Because there hasn’t been a nominee confirmed for a vacancy that has occurred in an election year before the election since 1932, it is reasonable that conclude that such vacancies should be campaign issues, as was the case last year.
Additionally, it is important to realize Supreme Court nominations were largely nonpartisan and were largely approved by voice vote… until Robert Bork.
Robert Bork’s confirmation hearings sparked what have become known as “The Judicial Wars” of action and retaliation when it comes to the Judiciary. Most nominees have not been present in front of the Senate; the Senate would convene and discuss the qualifications to the post and then vote (with the exceptions where the name was withdrawn). With Robert Bork and the subsequent nomination (and barely successful confirmation) of Clarence Thomas, there were two new terms that were introduced to the American political lexicon: “Borking” and “high-tech lynching.” These two new terms and the nominees who were being so targeted to create these terms showed that there was a new eagerness to politicize the Supreme Court. The days where qualifications were the main consideration were numbered, but not yet gone.
Two and three years after the confirmation hearings of Justice Thomas, respectively, the Republicans tried to go back to business as usual, when President Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. These were two eminently qualified candidates for the court, with a specific philosophy, which was particularly disagreeable to the Republicans at the time and now. How did the Senate Republicans react in the wake of two of the worst personal attacks on Supreme Court nominees ever? They not only allowed the vote to get to the floor, the votes were nearly unanimous. It was an offer of a truce.
This was a short-lived truce, however. So short lived, the next President, George W. Bush, had to deal with a failed filibuster attempt of one of his two approved nominees. John Roberts was confirmed by a vote of 78-22, but then-Senator John Kerry, joined by then Senator-Barack Obama, attempted to filibuster the nomination of Samuel Alito. The filibuster failed, but its meaning was clear: the Republicans’ attempts to move past the nomination hearings of Bork and Thomas, and get back to the precedent of approving qualified candidates, even if their philosophy was different than the Senators voting, was being rejected. The Supreme Court was going to become even more politicized.
Finally, there is an argument that, while the Democrats nuked the filibuster for the “inferior” federal courts, this is particularly egregious because the Republicans nuked the filibuster for the Supreme Court, and that is just worse. This argument is wrong. If anything, there should be a filibuster on the lower federal judgeships and not for Supreme Court nominees. This is because a vast majority of the jurisprudence of the country is handled by the lower federal courts. The Supreme Court hears around eighty cases a year, whereas the lower federal courts hear tens of thousands of cases a year. While the Supreme Court is important, the entire country pays attention when a seat opens up, and we pay attention to the nominee, this is not the case with the lower federal court judges, who also sit on the bench for life. The filibuster for lower federal court judgeships is important because the inherent check on the majority party from the voters is non-existent, because the nomination and approval of lower judgeships is not a noteworthy event in most people’s lives.
The narrative being sold to the American public is not a narrative based in fact, and designed to try and keep their base fired up for the midterm elections. It is a narrative that ignores the fact it was eighty-five years ago when a vacancy that occurred in an election year was filled in the same election year. It is a narrative that sinisterly ignores the politicization of the Supreme Court by the Democrats since 1987. This was the first real response by the Republicans in the Judicial Wars, and it was less significant that any of the actions taken by the Democrats.
1 In the 90th Congress there 64 Democratic Senators and 36 Republican Senators. The Cloture vote was 45 Aye (10 Republican and 35 Democratic Senators) to 43 Nay (24 Republican and 19 Democratic Senators) with 12 Democratic Senators missing from the vote.
2 Justice Kennedy was nominated November 30, 1987 and approved February 3, 1988.
3 63.6% of approved nominations before Robert Bork were confirmed by voice vote.
4 Justice Ginsburg 96-3. Justice Breyer 87-9.
5 Not that it stopped the Republicans from allowing a vote on President Obama’s two nominees.