I have just finished Jan Crawford Greenburg's recent book Supreme Conflict. It was a pretty interesting book, dealing mainly with the transformation from the Rhenquist Court to the Roberts Court. It talked a lot about the nomination and confirmation process post Roe V Wade.
I was struck by one passage in particular however:
"Jones's experience shows that abortion, for such a controversial and divisive issue, can produce a remarkably lopsided debate during the confirmation process. Republican nominees walk a minefield, knowing vocal opposition to Roe or even criticism of it, could doom their chances. But democratic nominees are assumed to support the abortion right and have been easily confirmed" (pg. 225)
What struck me about the quote was the matter of fact way it was presented, with no further discussion or analysis. The quote is undeniably true, but surely some discussion of why it is true was warranted?
There have been eleven rejected nominations to the Supreme Court. Three of these have been Democrats, five of them Republican.
Two of the three rejected Democratic nominees were nominated by President Cleveland in his second (non-consecutive) administration. William Hornblower was defeated 24-30, and Wheeler Hazard Peckham was defeated 32-41 in a 1894 Senate in which there were 44 Democrats, 40 Republicans, and 4 others. The opposition to these nominees was lead by Democratic Senator David Hill who had opposed Cleveland for the Democratic presidential nomination in 1892. The third was George Washington Woodward in 1845, who was rejected (20-29) by a Democratic majority Senate (34-22) after a failed Senate run in 1844.
So the last Democratic Supreme Court nominee to be rejected was in 1894, and all three were done in by fellow Democrats.
The first of the five rejected Republican nominees was Ebenezer R. Hoar by President Grant in 1870, by a vote of 24-33. The senate was dominated by the Republicans 62-12. The second was John J. Parker, nominated by President Hoover. He was rejected 39-41 (by one vote) in a Senate with 56 Republicans, 39 Democrats, and an independent. His nomination was strongly opposed by the labor unions and the NAACP. Next was Clement Haynsworth, nominated by President Nixon in 1969. He was rejected 45-55 in a Senate dominated by Democrats 64-36. He too was opposed by the NAACP, but he was also attacked by liberal Republicans. 38 Democrats and 17 Republicans voted against him. The fourth was Harold Carswell, nominated by President Nixon in 1970. He lost 45-51, in a Senate divided 57-43 in favor of the Democrats. He was attacked as a segregationist, and his competency was challenged. 38 Democrats and 13 Republicans voted against him. The last nominee rejected was Robert Bork. He was nominated by President Reagan in 1987. He lost 42-58 in a Senate divided 55-45 in favor of the Democrats. He was heavily opposed by liberal special interest groups.
So the last four rejected nominees (and all the nominees rejected in the 20th Century) were all Republicans.
The only Democratic Supreme Court nomination to fail in the 20th century was when LBJ tried to elevate Associate Justice Fortas to the Chief Justice. Fortas was accused of being too political (he was a close confidant of LBJ) and was under suspicion of financial impropriety. (In fact he was later forced to resign as an Associate Justice for financial improprieties) His nomination was withdrawn.
The last Democratic Nominees were:
Ruth Bader Ginsburg - confirmed 96-3, even though she had been a prominent lawyer for the ACLU (The ACLU has formally opposed the nominations of three justices in their 85 year career: Alito, Bork and Rehnquist. All conservative, all post Roe.)
Stephen Bryer - confirmed 87-9
The last two Republican nominees were:
John Roberts 78-22
Sam Alito 58-42
Republican senators are much more willing to vote in favor of Democratic nominees than Democratic senators are willing to vote for Republican nominees.
Special note also has to be made about the treatment Judge Robert Bork and Justice Clarence Thomas have received. Both men were savaged by liberal special interest groups and Democratic senators. No comparable actions have ever been taken against Democratic nominees. Instead, they are treated with deference and respect. Sam Alito also faced a concerted opposition from liberal special interest groups, and a hostile Democratic Senate.
There has also been a curious phenomena of Republican Justices drifting (in some cases racing) to the left and becoming liberals once on the Supreme Court. It begins with Chief Justice Burger in 1969, then Blackmun(1970), Stevens (1975 and still on the Court), O'Connor (1981), Kennedy (1988), and Souter (1990). All six of these Justices were expected to be judicial conservatives, but instead all have been instrumental in some way in preserving the liberal nature of the Court. One explanation for this effect is that Republican presidents tend to nominate candidates that are "confirm-able", meaning that they can garner some Democratic support, and thus have some liberal tendencies. Democratic presidents however feel free to nominate solidly liberal Justices, knowing that Republican senators are much more likely to defer to a Democratic president's wishes. (no Democratic nominee has had even 20 votes against him since Brandeis with 22 no votes in 1916, and then we have to go back to Cleveland's nominees for significant opposition..and it was mainly Democratic opposition) The other common explanation is that conservative justices are "corrupted" by the eastern liberal establishment, and a desire to please the liberal media.
Surely at least some of the points I have outlined above are worth at least a mention when the confirmation process is being discussed?