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Confirming Justice

It all boils down to the Supreme Court. That’s it. That’s the end game for the members of the United States Senate. Yes, each party supports their President or Presidential candidate – mostly. Yes, most Republicans want to re-elect Donald Trump and most Democrats want to elect Joe Biden. They generally support their candidate’s policies and positions. But at the end of the day, it’s about building a conservative or liberal majority on the highest court in the land.

That’s why, when it comes to SCOTUS nominations, anything goes. My first memory of a Supreme Court nomination was that of Judge Robert Bork, nominated by President Reagan in 1987. I was 14. Including Bork’s doomed nomination, there have been 14 nominees presented to the Senate in the last 33 years. Eleven have been confirmed, one rejected (Bork), one withdrawn (Harriet Miers, [not including John Roberts, who was withdrawn so he could be renominated as Chief Justice]) and one received no Senate action (Merrick Garland). Of those 14, seven nominations were met with some significant pushback from the opposing party, including four who went on to be confirmed (Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh). The ones who got a lot of heat and were not confirmed were Bork, Miers and Garland.

Of those seven, six are conservative Republicans. It’s worth noting, that since Bork, the nominees from Democrat Presidents (Clinton and Obama) have largely sailed through – with apologies to Judge Garland. You could argue that Democrats have nominated judges with more broad-based appeal. I prefer to argue that Republicans have generally been more conciliatory to the Democrat nominees. But let’s set that aside for a moment.

Let’s also set aside Harriet Miers. She is a wonderful woman, with an impressive background, and was highly qualified for any number of executive branch positions. She was not a good SCOTUS nominee, and her name never should have been put forth. Let’s also set aside her replacement, Samuel Alito. Justice Alito’s nomination was not without opposition. Only three (all Republican) justices were confirmed with a closer vote than his (58-42) in the last 50 years. However, Alito’s nomination doesn’t rise to the level of rancor of the others I want to focus on here.

The nominations of Bork, Thomas, Garland, Gorsuch and Kavanaugh were absolute slugfests. Justices Thomas and Kavanaugh can surely lay claim to the most brutal confirmations in my lifetime, if not in the history of our great nation. Garland is the only one of the five nominated by a Democrat, and the only one of the five to not receive a vote in the Senate. Thomas, Garland and Kavanaugh were all nominated to replace a deceased or retired justice who had ( to varying degrees) a different political philosophy. Thus, their nominations presented a potential shift in the court’s ideology, and therefore took on an exalted sense of urgency for each party. The issue that superceded all others for these and every nominee since 1973 was abortion.

Varying standards have been used by the Senate when considering SCOTUS nominees. Aside from Miers, each nominee since 1987 was largely considered by each party to be “qualified” from a judicial standpoint. That is, he or she held the proper education and experience in the courts to be considered a thoughtful expert on the law, and to have risen above his or her peers on their merits, despite their politics. In many cases, politics were largely disregarded. Republican-nominated judges Anthony Kennedy (97-0) and David Souter (90-9) both sailed through the Senate. John Roberts received a comfortable 78-22 margin. Likewise, Clinton-nominated judges Ruth Bader-Ginsburg (96-3) and Stephen Breyer (87-9) got rubber-stamped and Obama nominees Sonia Sotomayor and Elena Kagan each got well over 60 yes votes.

In fact, after the defeat of Judge Bork – who many on the right still feel was unjustly smeared – and the graphically detailed confirmation of Thomas, the next 25 years of SCOTUS nominations was largely civil. Then, in February 2016, conservative icon, Antonin Scalia died in his sleep at the age of 79, setting off a firestorm that still brews today.

President Obama, with almost nine months remaining in his second term, nominated Judge Garland to replace Scalia. Had Garland been nominated to replace a liberal justice, he would have been easily confirmed. Had Scalia died 18 months earlier, with a Democrat-controlled Senate, Garland would have been confirmed. But Senate Majority Leader Mitch McConnell was not about to let the most conservative member of the court be replaced by anyone left of center, especially in an election year. In February 2016, McConnell could not have felt overly confident that a Republican would defeat Hillary Clinton in November. But even the possibility of a Republican President was enough for him to clench his teeth and gamble his political clout on his refusal to bring Garland before the Senate for a confirmation hearing. It was shrewd, brilliant, dirty, unfair and successful.

Despite the howls from Democrats, McConnell stood firm that the American people should have a say in the process by voting in November. His tactic may have even helped propel Donald Trump to the Presidency.

Democrats sought their revenge – first with Gorsuch, and then with the Kavanaugh. Both men would have likely received 60+ yes votes in a less polarized climate. Gorsuch was the first to pay for the treatment Garland had received a year earlier. Democrats picked at some of his judicial rulings, as is always the case. McConnell amended the rules to disallow a Democrat filibuster – a delay tactic that requires 60 votes to overcome it and could have mothballed the nomination. In the end, just three Democrats joined Republicans in confirming Gorsuch.

Democrats knew they would need to take more drastic measures against Kavanaugh, who had clerked for Justice Anthony Kennedy, the man he was nominated to replace. Kavanaugh received unanimous support from the American Bar Association, and despite being more conservative than Kennedy, he seemed destined to earn confirmation by a margin similar to Gorsuch’s. Then came the accusations of sexual assault. I won’t re-litigate those here – that’s been done and done and done. I will point out (again) the irony that Kavanaugh’s accusers brought less corroboration than has Tara Reade in her accusations against Joe Biden. Both men may be innocent or guilty of the accusations against them. I really don’t know, nor do most of us. But the contemporaneous documentation of Reade’s accusations from her divorce records and from her mother’s call into Larry King Live – while not proof of assault – do back up her claim that she at least told people in the early 1990’s that something happened to her while working for Biden.

But I digress. Kavanaugh was confirmed 50-48, the second closest vote in the court’s history.

So here we are, or here’s where we soon may be. Justice Ginsberg is 87 years old and has well-documented health issues. She is deserving to serve her term until her unfortunate passing or until she chooses to retire. Had Hillary Clinton been elected, Ginsburg probably would have hung up her robe in 2017. Instead, she appears to be hanging on in hopes that a Democrat can replace her with someone of similar ideology.

With Ginsburg’s most recent visit to the hospital, the notion of her replacement has arisen again. If she were to – for whatever reason – leave the bench in the next few months, would President Trump nominate her replacement and would Mitch McConnell hold a confirmation hearing? Yes and yes. Would that be fair, considering the treatment Obama and Garland received in 2016? Probably not. Does that matter? Nope.

Republicans contend that the comparison is not apples to apples, because Republicans hold both the White House and the Senate. In 2016, those were divided. That’s a weak argument, but it’s what they’ve got.

“We’re going to fill it,” said Wyoming Senator John Barrasso, when asked by Politico what would happen if a vacancy occurred this year. Texas Senator John Cornyn agreed, saying “If you thought the Kavanaugh hearing was contentious this would probably be that on steroids. Nevertheless, if the president makes a nomination then it’s our responsibility to take it up.” Cornyn seemingly believed differently in 2016.

After the attempted filibuster of Gorsuch and the hurling of the kitchen sink at Kavanaugh, Republicans likely feel like Democrats have avenged Garland. Democrats probably disagree, since the GOP outscored them 2-0 in confirmations in recent years.

It’s a very sad ebb in the tide of our political process. Each party has shot its most poisonous arrow at the other in the last 33 years. In the last four, those arrows have become tomahawk missiles. Don’t believe Republicans when they say it’s their duty to the President to put his nominee up for a vote. And don’t believe Democrats when they say they believe Kavanaugh’s accusers but not Biden’s. Each of these are lies of convenience. But these lies reveal an ideological honesty in each party that is refreshing to consider. While the tactics are often dirty, the motivation is to build a court that is in line with their core ideological beliefs – a court that will stand and will rule long after most of the senators who fought for or against it have left the halls of Congress. Do the ends justify the means? That is for history to judge.


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