The confirmation hearings have begun, and Judge Ketanji Brown Jackson, President Biden’s pick to replace Stephen Breyer, may well be on her way to becoming the 116th justice of the Supreme Court. But with a 50-50 ideological split in the upper chamber, her ascension isn’t quite guaranteed. During opening remarks, Republicans evoked imagery of the Brett Kavanaugh circus, promising they wouldn’t drag the nominee through the mud as those across the aisle had. Democrats recalled prior candidates cheated by the GOP, warning that such had better not happen to who would otherwise become the first black woman sent to SCOTUS. To see her confirmed, liberal senators warn against racism, sexism, and partisan gamesmanship, extolling the virtue of unity.
In reality, though, the GOP hasn’t historically obstructed nominations quite like the Democrats. Perhaps that means Judge Jackson will see smooth sailing on her way to the bench. Certainly, the Republican senators of the Judiciary Committee on day one of the hearings made that point. Together, they painted the picture of what GOP candidates and the senators who supported them faced through the Trump years and guaranteed that today’s nominee and their colleagues across the aisle would not face the same from them.
The examination will be thorough and exhausting, but it won’t turn into a spectacle. Democrat senators won’t be spat on while trying to get back to their offices or have their windows busted out with bricks. No one will ask Jackson about her teenage dating habits or if she liked beer. There will be no questions about her church life or her kids. Damning information about her personal life won’t be held until the last day and brought out when she doesn’t have the time to defend against it. She will be asked about her judicial philosophy, her views on certain issues like abortion and criminal justice, and her questionable history of favoring those with child porn convictions with lighter than recommended sentences. And, of course, she’ll be asked if she supports expanding the Supreme Court.
Democrats – especially Joe Biden – have called for a return to unity since the 2020 election, but when were they a party of uniters? Was it sometime before their divisive behavior during and after the Trump era? Merrick Garland was the first Democratic Party Supreme Court nominee to be denied a confirmation vote entirely since William Hornblower, Grover Cleveland’s pick, in 1893. In the time between, however, two GOP picks suffered the same fate and another three were voted down.
All told, 25 nominations have either been rejected, postponed, or entirely ignored by the Senate, beginning when George Washington’s commission of John Rutledge was rejected 14-10 in 1795. In a scenario almost perfectly mirroring the 2016 Garland conflict, National Republican John Quincy Adams saw John Crittenden’s confirmation postponed so that the father of the Democratic Party, Andrew Jackson, could fill the hole instead. His choice, John McLean, sailed through on a voice vote.
After the short time of the National Republicans and before Abraham Lincoln brought what we now call the GOP to the White House, the Democrats rejected one, postponed one, and ignored four Whig candidates while only having two of their own denied. Since the days of Lincoln, Democrats and Republicans have each ignored three of the other’s SCOTUS picks. In rejecting votes, however, the folks on the left clearly won out. Twice only did Republican opposition manage to swing the vote away from confirmation, though Democrats have led the rejection of five GOP candidates.
From Bork to Barrett
Looking at the more recent past, only three Supreme Court nominees haven’t been confirmed since 1975. Merrick Garland’s story is fresh in everyone’s mind, of course. Harriet Miers was nominated by George W. Bush but lacked any judicial experience or, for that matter, real support even amongst Republicans. Her nomination was withdrawn less than a month after being submitted and had little to do with partisan politics. But that brings us to Robert Bork.
As Liberty Nation Senior Political Analyst Tim Donner explained in his analysis of how the Democrats ruined the Senate:
“And then in 1987, along came Robert Bork, the only Supreme Court nominee to have a verb named after him – because of the vicious ad hominem attacks unleashed on him by Ted Kennedy and his liberal cohorts in the Senate.”
President Donald Trump saw each of his three SCOTUS picks suffer some degree of attempted “borking” – though unsuccessfully, thanks to the Republican majority in the Senate at the time. Amy Coney Barrett’s confirmation was 100% a partisan affair, ending 52 to 48 exactly along party lines. Brett Kavanaugh was confirmed even more narrowly at 50-48, but a single Democrat – West Virginia’s Joe Manchin – crossed the aisle in support. For Neil Gorsuch, three Democrats joined all the Republicans for a 54-45 confirmation vote.
Moving back to the Obama years, we see it wasn’t quite as bad, as the Republicans were more likely to cross the aisle in support of SCOTUS picks than Democrats would be later. Elena Kagan was confirmed 63-37, with five Republicans supporting her. Sonia Sotomayor enjoyed support from nine Republicans, for a final vote of 68-13.
George W. Bush only saw four Democrats support Samuel Alito, who was confirmed 58-42, with one Republican opposing. Prior to this, Supreme Court nominations did tend to enjoy broad bipartisan support throughout the 20th century. John Roberts’ confirmation as chief justice was supported by 23 Democrats. Stephen Breyer was confirmed 87-9, with 32 Republicans, and Ruth Bader Ginsburg sailed through 96-3 with 41 Republicans, giving Democrat Bill Clinton two easy SCOTUS wins.
George H. W. Bush’s choice, Clarence Thomas, of course, fought a bitter battle in the Senate, facing an attempted “borking” much like Trump’s picks and the very man behind the verb. Still, 11 Democrats joined the GOP in confirming – barely – Thomas with a vote of 52-48. David Souter, on the other hand, got 91% of the vote, which included 46 Democrats. Aside from Bork, Ronald Reagan nominated three judges to the position of associate justice – all of whom were confirmed unanimously – and one, who won 65% of the Senate, to chief justice.
Since Gerald Ford’s nomination of John Paul Stevens in 1975, only one of the 20 nominations (5%) has been successfully rejected, two (10%) have been withdrawn, one (5%) has been ignored, and the remaining 16 (80%) have been confirmed – and four of those 16 (25%) were unanimous. Six of the remaining 12 confirmations came with the support of less than ten Senators of the opposing party, and Democrats certainly enjoyed more Republican support than the other way around overall.
Does She Stand a Chance?
Judge Jackson has already been confirmed by the Senate three times to lower court roles, and that might make folks think she’s a shoo-in. In 2010 and 2013, she was confirmed to her judicial positions unanimously. But her 2021 confirmation to the US Court of Appeals for the D.C. Circuit was close. Three Republicans – Maine’s Susan Collins, Alaska’s Lisa Murkowski, and South Carolina’s Lindsey Graham – joined the Democrats for a 53-44 win. Roy Blunt (R-MO), Marco Rubio (R-FL), and Ben Sasse (R-NE) abstained.
She’ll likely enjoy full Democratic support once again, but can she count on those six Republicans to either support or, at least, not oppose her this time? Collins warned that she’s undecided, and that SCOTUS is a different game. Murkowski and Blunt have given no indication either way, saying they, too, are undecided. Lindsey Graham, on the other hand, is obviously sore she was nominated instead of J. Michelle Childs, who hails from his own home state, and he spent a mere 15 minutes meeting with the judge. It seems unlikely he’ll repeat his 2021 endorsement. Sasse warned that he saw some things in her history that are “troubling,” and Rubio said he’ll only back a judge who believes in defending the Constitution as written.
It’s entirely possible – likely, even – that the GOP will try to conduct a civil hearing process, then largely reject her over legitimate ideological concerns. As LN Legal Affairs Editor Scott D. Cosenza, Esq. put it, “they’ll oppose; they just won’t invent heinous crimes as the reason why.” In the end, however, as long as she doesn’t lose any Democrats, Judge Jackson only has to nail down a single Republican to eke by.
~ Read more from James Fite.