First, a little look back at the last eleven (Rehnquist x2) SCOTUS confirmation votes in the Senate:
William H. Rehnquist:
Dec. 10, 1971: 68-26. – Senate breakdown, 54 D, 44 R, 2 I (Rep President)
Sept. 17, 1986: 65-33 (for Chief) – 55 R, 45 R (Rep President)
John Paul Stevens:
Dec. 17, 1975: 98-0. 61 D, 37 R (Rep President)
Sandra Day O’Connor:
Sept. 21, 1981: 99-0. 46 D, 53 R, 1 I (Rep President)
Antonin Scalia:
Sept. 17, 1986: 98-0. 55 D, 45 R (Rep President)
Anthony Kennedy:
Feb. 3, 1988: 97-0. 55 D, 45 R (Rep President)
David Souter:
Oct. 2, 1990: 90-9. 56 D, 44 R (Rep President)
Clarence Thomas:
Oct. 15, 1991: 52-48. 56 D, 44 R (Rep President)
Ruth Bader Ginsburg:
1993 96-3, 1993. 57 D, 43 R (Dem President)
Stephen G. Breyer:
July 29, 1994: 87-9 57 D, 43 R (Dem President)
John G. Roberts:
September 29, 2005: 78-22 55 R, 44 D, 1 I (Rep President)
Sources: USATODAY.com – Supreme Court confirmation hearings have grown tougher and CNN.com – Roberts sworn in as chief justice – Sep 29, 2005
A few things come to mind when looking at this information.
The first is an obvious point that is often ignored: the Rehnquist Court was appointed overwhelmingly by Republicans, 7-2, yet the court was famous for 5-4 decisions (hence all the drama over the “pivotal” O’Connor seat and all the hand-wringing in some quarters about the need for a like-minded swing-voter to replace her).
This is suggestive of the fact that regardless of what a nominee looks like upon nomination, that there really is no way to know how that person will rule over the long haul. Yes, some nominees are more likely to be consistent than others, but who would have thought that one day that people like Phyllis Schafly would have called for the impeachment of Justice Kennedy?
It seems to me that well trained, intelligent judges tend to decided more liberally (in the most general sense of the term) than is acknowledged. Even supposed ideological conservatives, if they are true to their jurisprudence, tend to be less inclined to be activists, and so may uphold so-called “liberal” laws if they are properly constructed.
Second, clearly something has changed in this process in the last two decades. There is no denying that Scalia could by no means be confirmed by a 98-0 vote in 2005, especially if the Democrats controlled the chamber. Part of that is post-Bork, part of that is a shift in national politics.
Third, the Ginsburg nomination and confirmation (as well as Breyer’s) sticks out as instructive in the current context over Alito.
The basic scenario with Ginsburg in 1994: a highly qualified candidate with a clear paper-trail that indicates the nominees’ basic ideological perspective is presented to a Senate wherein the President’s party has a clear (but not filibuster-proof) majority.
Consider Ginsburg’s credentials (via her bio here):
- A compelling personal story.
- Attended law school at Harvard and Columbia (graduating from Columbia, but achieving law review at both schools).
- On the law school faculty at Rutgers.
- Active in the ACLU, including directing the Women’s Rights Project.
- 12+ years on the DC Court of Appeals (appointed by Carter).
No one could argue that Justice Ginsburg was not qualified to be appointed to this position. And while she does not conform with my personal jurisprudence or worldview, had I been in the Senate in 1994, I would have voted for her confirmation.
The question then becomes, how is the Samuel Alito scenario any different from Ginsburg’s? The political situation is almost identical in terms of the President and the Senate (in this case the majority part has two less Senate seats) and the qualifications of the nominee are not in question. Further, both are clearly identifiable with a particular intellectual and philosophical disposition that comports with the President who nominated them.
Why, then, was 1994 a relatively calm affair, once all was said and done, but 2005 looks to potentially be “Armageddon”?
Update: Jon Henke had a similar set of thoughts earlier today.
Update II: This post is part of today’s Beltway Traffic Jam.
November 1st, 2005 at 2:35 pm
Well put, Steven. I made very similar points here today. And drew the apparent conclusion here.
November 1st, 2005 at 2:43 pm
Scalitos Way
UPDATE: Steven Taylor has thoughts along the same lines.
November 1st, 2005 at 2:58 pm
because there has a deliberate insertion of vocabulary relating to the vilification of justices in the commons during the last 10-15 years. Words like “activist judges” and “legislating from the bench” are in the public’s vocabulary.
Since the public is talking about it, the senators are talking about it…. simply because their constitency cares one way or the other.
In other words, the public is paying attention and relection hinges more on judicial votes. More so now than then.
November 1st, 2005 at 3:02 pm
Not a bad theory, but an incorrect one. The vocabularly of which you speak is not new.
November 1st, 2005 at 3:05 pm
Understand: the public perception of the Court as being a significant political entity dates to at least the Warren Court of the 1960s.
Roe was 1973, and has been controversial ever since.
Bork was 1987.
The whole Strict Construction/Judicial Activism rhetorica dates back to at least the Nixon administration.
November 1st, 2005 at 3:16 pm
in 73 before & after there was the whole vietnam, watergate emerging consuming (entirely?) the public’s conscience. You’re probably correct it was there, but i would argue it was way down on the priorities.
in 87, you have a good point & in 91 also. In 91 Thomas raised eyebrows because of Anita Hill & Thurgood Marshall stating emphaticly, “don’t replace me with a black man just because he’s black” – televised hearings, etc. .. … in 87 maybe because Bork was so outspoken.
Hmmmm… maybe’s its because we’ve now been through a few contentious hearings….. or maybe because of bloggers & 24-hour news people are talking about it more whereas in 91 & 87 it was up to the big 3 to bring it to us … or not.
just thoughts.
November 1st, 2005 at 3:20 pm
and, of course, now we have Iraq, Afghanistan, al Qaeda, Katrina, FEMA and Plamegate, to name a few…
November 1st, 2005 at 3:21 pm
Altio Reading
Submitted for your consideration:Steven Taylor looks at the politics of SCOTUS nominations and argues that the Senate should treat Altio as it did Ginsburg. David Giacalone tells his left-of-center friends to take a deep breath and calm down. In a
November 1st, 2005 at 4:47 pm
maybe the short answer is that, coming off the highly public and controversial Thomas hearings, the congress was in no mood, nor was the president to have another go round.