Antonin Scalia was confirmed unanimously by the Senate in 1986. (cc photo: Steven Masker/Wikimedia)
In his obituary (2/13/16) for Supreme Court Justice Antonin Scalia, New York Times Supreme Court correspondent Adam Liptak wrote:
Though his conservative views were well known, he was confirmed by the Senate by a vote of 98 to 0. He may have benefited from the fact that the liberal opposition was focused on the nomination of Justice William H. Rehnquist, who was already on the court, to succeed Chief Justice Burger….
The lopsided vote for Justice Scalia also reflected a different era, one in which presidents were thought to have wide latitude in naming judges. That era seemed to come to an end in 1987, with the defeat of the nomination of Justice Scalia’s former colleague on the DC Circuit, Judge Bork.
It’s true that there was an era when the Senate almost always gave near-complete deference to presidents’ judgment in naming Supreme Court justices; from William McKinley through John F. Kennedy, almost all nominees were confirmed, generally by voice vote. When there was a recorded vote, margins of confirmation were typically wide, as with FDR’s William Douglas (confirmed 62–4) or Eisenhower’s John Harlan (71–11). The only nominee to be rejected during this seven-decade era was Herbert Hoover’s choice of Judge John Parker in 1930, whom the NAACP lobbied against because of his opposition to African-American suffrage. (Parker was also seen as anti-labor.)
Abe Fortas: blocked as chief justice by a coalition of conservative Republicans and Southern Democrats (photo: Frank Wolfe/LBJ Library)
That era came to an end not in 1987 with Bork, but in 1968 with Lyndon Johnson’s nomination of Abe Fortas, already a member of the Supreme Court, to be chief justice after the announced resignation of Earl Warren. Fortas was viewed as a liberal member of the court—he was in the 5–4 majority for the decision that gave us Miranda rights, and authored Tinker v. Des Moines, which affirmed that high school students are protected by the First Amendment—and was accordingly opposed by a coalition of conservative Republicans and Southern Democrats who resented the Supreme Court’s repeated rejection of segregation. Fortas’ nomination was successfully filibustered; the fact that 1968 was an election year and Republicans looked likely to retake the White House factored in to political calculations.
After Richard Nixon did in fact become president in 1969, he pressured Fortas to resign, threatening to have him impeached over outside income he received as a justice. In part as a reaction to this high-handed behavior, Nixon’s choice as a replacement, Clement Haynsworth, received strict scrutiny for his anti-integration rulings, as well as for a conflict of interest in an anti-union ruling. Haynsworth was rejected, 45–55. Nixon’s subsequent spite nomination of segregationist G. Harrold Carswell—famously defended by one senator with, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they?”—also went down, 45–51.
Nixon’s third-time’s-the-charm nomination of Harry Blackmun sailed through 94–0. Significantly, this was the first time since 1874 in which a recorded Senate vote on a Supreme Court nominee didn’t include a single negative vote. That was the precedent that was generally followed with the nominees between Blackmun and Scalia, with virtually unanimous confirmation for Nixon’s Lewis Powell (89–1), Ford’s John Paul Stevens (98–0) and Reagan’s Sandra Day O’Connor (99–0). Only William Rehnquist—another opponent of civil rights and minority voting—received significant opposition during this period, in his nominations to the Supreme Court (68–26) and as chief justice (65–33). So Scalia was the beneficiary of a tradition that dated back to 1969.
Robert Bork: rejected by the Senate for good cause
There’s a lot of mythology about the Bork nomination: that it was unfairly torpedoed by liberal interest groups (FAIR Media Advisory, 7/21/05), that he was a victim of slanted press coverage (Extra!, 8/09), even that overzealous Democrats had tried to subpoena his video rental records (Extra! Update, 4/99). None of this is true; in fact, Bork was rejected because of his extreme and rather bizarre interpretations of the Constitution, as exemplified by his assertion that “constitutional protection should be accorded only to speech that is explicitly political” (Indiana Law Journal, Fall/71).
The new tradition of going along with the president’s choice unless there is a serious fight didn’t end with Bork; Anthony Kennedy, who eventually replaced him as Reagan’s final Supreme Court pick, was confirmed without opposition, 97–0. With the exception of Clarence Thomas, who squeaked in 52–48, the nominees of George Bush Sr. and Bill Clinton—David Souter (90–9), Ruth Bader Ginsburg (96–3) and Stephen Breyer (87–9)—each had less than 10 percent of the Senate voting against them. (Thomas, of course, was opposed for numerous legitimate reasons.)
Only in the post-Gore v. Bush era, after the Supreme Court’s conservative majority took it upon itself to select the president of the United States, has it become routine for Supreme Court nominees to face significant opposition based on ideology—with John Roberts (78–22), Samuel Alito (58–42), Sonia Sotomayor (68–31) and Elena Kagan (63–37) each having one-fifth to two-fifths of the Senate voting against them. That’s the “different era” that began quite a while after Scalia was confirmed unanimously—and which will likely give whoever Barack Obama nominates to replace Scalia a tough road to confirmation.
Jim Naureckas is the editor of FAIR.org. Follow him on Twitter: @JNaureckas.
This piece was reprinted by RINF Alternative News with permission from FAIR.