Supreme Court Nomination: Some Historical Perspective

Supreme Court

History New Network answers all of your questions about the history of Supreme Court nominations.  It is worth your time.  Here is a taste:

Is it likely President Obama will be given a chance to make a third appointment to the Court?

President Barack Obama is a Democrat.  The US Senate is controlled by the Republicans.  That makes it unlikely that President Obama will be able to get a nominee through the Senate, according to an assessment made by Harvard Law Professor Laurence Tribe in 2014 when some were suggesting that Ruth Bader Ginsburg should resign to allow Obama to replace her with a younger person.  The last time a president of one party was able to get a Senate controlled by the other major party to approve a nominee was in 1991, when the Senate confirmed Clarence Thomas to the Court.  He was nominated by President George H.W. Bush.  The vote was 52 to 48.  (Thomas’s nomination was clouded by accusations that he had sexually harassed Anita Hill.)  Since then vacancies have occurred when the president and the Senate majority happened to be from the same party. 

Within hours of the announcement of Justice Scalia’s death Mitch McConnell (R-Ky), the Senate Majority Leader, poured cold water on the idea of replacing the justice this year.  “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell wrote in a public statement. “Therefore, this vacancy should not be filled until we have a new President.” Senate Minority Leader Harry Reid (D-NV) insisted that Obama should nominate a replacement for Scalia.

Have Supreme Court nominations usually been the subject of partisan controversy? 

The shocking answer — shocking to Americans who have lived through the hearings for Robert Bork, Clarence Thomas, and Sonia Sotomayor — is that for nearly a century nominations to the Court usually flew through with barely a bump.  Between 1894 and 1967 only one nominee was rejected.  Most pundits date the beginning of the change to Ronald Reagan’s nomination of Robert Bork, a far-right law professor from Yale who advocated the theory of originalism.  But as Rick Shenkman reported in an article on HNN in 2006 the turning point came in 1967 when Lyndon Johnson nominated Abe Fortas as chief justice.  Fortas, who was already a member of the Court, failed to win approval after allegations of conflicts of interest were leveled against him.  In public memory Fortas went down because he was corrupt.  But in retrospect his was just the first in a string of failed nominations.  One thread connects all of them.  All became caught up in the culture wars. 

The New York Times notes that South Carolina Senator Strom Thurmond claimed to object to any president’s making judicial nominations at any level within months of a presidential election. This became known as the Thurmond Rule.  But since then the practice has been to approve judicial nominations in election years, albeit more slowly.

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One thought on “Supreme Court Nomination: Some Historical Perspective

  1. The shocking answer — shocking to Americans who have lived through the hearings for Robert Bork, Clarence Thomas, and Sonia Sotomayor — is that for nearly a century nominations to the Court usually flew through with barely a bump.

    True, but more to the political point [the HNN article inexcusably misses this], Sens. Obama, Biden, Clinton and Kerry led a [failed] filibuster of Samuel Alito in 2006. Game on.

    http://justoneminute.typepad.com/main/2016/02/the-next-supreme-court-nominee.html

    My blogbrother, constitutional scholar Seth Barrett Tillman, has some thoughts on recess appointments over at NRC.

    http://reformclub.blogspot.ie/2016/02/a-quick-thought-on-presidential-recess.html

    Like

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