Supreme Court Nominations – A Bit of History

Today President Trump will name a new nominee to the Supreme Court and the fight will begin. Already some Democrats in the Senate have indicated they will oppose the nomination and attempt to filibuster without even knowing who the nominee will be. This is democracy in action.   Their justification is that the Republicans did not allow the nomination of Merrick Garland to proceed after President Obama nominated him. If the roles were reversed the Democrats would have blocked a Republican nominee with less than a year left in the President’s term. If Hillary Clinton had won she would be making the new nomination today and nobody on the left would be talking filibuster if she nominated anyone other than Garland.

Now you can debate back and forth whether the Republicans should have proceeded with the Garland nomination but history has shown us that the norm is not to confirm someone under those circumstances. In fact, Joe Biden, while serving in the Senate in 1992, argued against confirming any Supreme Court Justice so close to an election. Here are some parts of his speech on the Senate Floor.

“…it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not – and not – name a nominee until after the November election is completed.” (Sen. Biden, Congressional Record, S.16316-7, 6/25/1992)

“…in 1800, 1828, 1864, and 1956-the President himself withheld making a nomination until after the election was held. …it is time to consider whether this unbroken string of historical tradition should be broken. In my view, what history supports, common sense dictates in the case of 1992.” (Sen. Biden, Congressional Record, S.16316, 6/25/1992)

“The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” (Sen. Biden, Congressional Record, S.16317, 6/25/1992)

And in summarizing this statement Senator Biden gave his reason for implementing what has become known as the Biden Rule.

“I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.” (Sen. Biden, Congressional Record, S.16317, 6/25/1992)

Now all of this was said when there was no Supreme Court vacancy and no nominee but Senator Biden made it very clear that should there be one during the final year of President George H.W. Bush’s presidency it should not be considered by the Senate and should be reserved for the new President.

When pressed on the idea that a nomination should be considered to allow the Court to have a full compliment of nine Justices to break ties Biden responded:

“People may fret that this approach would leave the Court with only eight members for some time. But as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the justices four to four are quite minor compared to the cost that a nominee, the president, the senate, and the nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.”

So this past year the Democrats in the Senate spent a lot of time walking back those comments and interpreting them differently to fit their narrative. To be fair many of them were not present in the Senate when Biden made that speech and probably did not realize that he was in fact the Chairman of the Senate Judiciary Committee at the time. So his words were very powerful at the time and sent the clear signal that no nominee in the last year of President George H.W. Bush’s presidency would be considered in the committee.

So now we come back to the present and we await the nomination by President Trump and you can be assured, no matter who the nominee is, there will be a huge battle in the Senate.   But to use the Merrick nomination as your reason for opposing another nominee is not rational and ignores the very advice that Senator Biden gave in 1992.

The favorites for the nominations are William Pryor, Jr, a federal judge on the 11th Circuit Court of Appeals, Thomas Hardiman, from the 3rd Circuit Court of Appeals and Neil Gorsuch from the 10th Circuit Court.   If I had to pick who I think the President will nominate I would go with Gorsuch. His background is impeccable. He is a Harvard law graduate and Oxford graduate. I have to admit that another reason I like Judge Gorsuch is that some hard liner anti-abortion activists have been lobbying against him. They are against him because he had the audacity to write an opinion that he has an obligation to follow court precedent.

Now when you look at the history of Supreme Court nominations what jumps out at you immediately is where they fall on the Court once confirmed. History will show that Democrats have placed litmus tests on their nominees and made sure they adhered to liberal orthodoxy. Republicans seem to have looked more for judicial temperament and not placed any political litmus test on their nominees. If you look at Republican nominees over the past generation I think you will find this to be true.

John Roberts (moderate nominated by George W. Bush)

Samuel Alito (conservative nominated by George W. Bush)

Clarence Thomas (conservative nominated by George H.W. Bush)

David Souter (liberal nominated by George H.W. Bush)

Anthony Kennedy (moderate nominated by Ronald Reagan)

Antonin Scalia (conservative nominated by Ronald Reagan)

William Renquist (conservative nominated by Ronald Reagan and Nixon)

Sandra Day O’Conner (moderate to liberal nominated by Ronald Reagan)

John Paul Stevens (liberal nominated by Gerald Ford)

Lewis Powell (moderate nominated by Richard Nixon)

Harry Blackmun (liberal nominated by Richard Nixon)

Warren Burger (moderate nominated by Richard Nixon)

Now show me a Democrat nominee that was considered a moderate or conservative and then ask yourself who puts litmus tests on their nominees.

Arthur Goldberg (liberal nominated by Lyndon Johnson)

Abe Fortas (liberal nominated by Lyndon Johnson)

Ruth Bader Ginsburg (liberal nominated by Bill Clinton)

Stephen Breyer (liberal nominated by Bill Clinton_

Sonia Sotomayer (liberal nominated by Barrack Obama)

Elena Kagan (liberal nominated by Barrack Obama)

Now if you look further into the nominations of Justices you will see that most on this list, as well as history, was voted onto the Court by strong bipartisan votes. That seemed to have changed with Clarence Thomas who as confirmed by a vote of 52-48, the closest in history. Most of us can remember the rancor that surrounded the Thomas nomination. But the trend continued with 22 votes against Chief Justice Roberts, 42 votes against Alito, 31 votes against Sotomayer and 37 votes against Kagan. What that shows is the Court is being used as a political weapon in partisan politics and that will be front and center in this new confirmation process. The new nominee will replace a solid conservative vote on the Court and will do nothing to swing the balance of power. But there are several incumbent Justices that are getting up in age and setting up some huge fights that will change the make up of the Court. Ginsburg is now in her mid-80s, Breyer is approaching 80, Thomas is relatively young at 68 but has hinted he might like to retire and Kennedy is also in his 80s. Should one of them other than Thomas leave the Court it would be a dramatic shift and make this fight look like a petty squabble.

There are many political pundits who say the Supreme Court was one of the major factors in Donald Trump winning the election. The Pew Research center says it was an important issue for 65% of the voters. An ABC poll showed that 21% of voters said it was part of their determining factors in voting and a majority of that group favored Trump.

So now we will wait for the nominees name and the fight will begin.

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