Two of the most influential justices ever to sit on the Supreme Court — Thurgood Marshall and Antonin Scalia — probably couldn’t get confirmed to the bench today.
So say scholars and Senators who argue that the high court has turned into such a political battleground that recent presidents now eschew nominating individuals like Marshall and Scalia.
Instead, they argue, presidents are trending in favor of nominees who, like current Supreme Court hopeful Elena Kagan, have spent their lives avoiding controversy.
“I have joked that if President [Barack] Obama nominated Moses, the lawgiver, or Mother Theresa, Senate Republicans would vote against the nomination. Such a willingness of many Republican Senators to heed the extreme ideological test imposed by the far right,” Judiciary Chairman Patrick Leahy (D-Vt.) lamented in a June 7 floor speech.
But even Leahy, no stranger to a partisan brawl or two, faults both parties for the politicization of the Supreme Court confirmation process.
“I’ve encouraged everybody to stop listening to the single-issue groups on the right and the left,” Leahy said in an interview Thursday, adding that the harsh rhetoric that characterizes today’s confirmation debate would make it impossible for justices like a Scalia or Marshall to win Senate approval.
“If that is the case, we ought to suffer for it,” he said.
[IMGCAP(1)]Sen. Susan Collins (R-Maine), one of the chamber’s leading moderates, said she is particularly concerned about the influence politics and ideology have had on the confirmation process, and fears the atmosphere has typecast today’s high court picks. “That’s particularly true if the individual has been at all provocative. That is the worrisome part for me,” Collins said.
Sen. Arlen Specter (D-Pa.), who has served as both the chairman and ranking member of the Judiciary Committee over his 30-year Senate career, said that as Congress has become increasingly divisive, so has the Supreme Court confirmation process.
“With almost 30 years of experience, my thinking on this subject has evolved and changed. At the outset, I thought the president was entitled to considerable deference, providing the nominee was academically and professionally well-qualified, under the principle that elections have consequences,” Specter said in a recent floor speech.
“With the composition of the Supreme Court a presidential campaign issue, it has become acceptable for the president to make ideological selections. As the Supreme Court has become more and more of an ideological battleground, I have concluded that Senators, under the doctrine of separation of power, have equal standing to consider ideology,” he added.
Marshall, one of the chief architects of the civil rights movement’s desegregation strategy and a liberal leader, was confirmed in 1967 by a 69-11 vote. Marshall was not only the first black justice, but his confirmation came only three years after the divisive Congressional fight over the 1964 Civil Rights Act.
Similarly, the unabashedly conservative Scalia was confirmed in 1986 by an overwhelming 98-0 vote.
But the days of the Senate arming the Supreme Court with ideological justices like Marshall and Scalia appear to be a thing of the past.
The first clear shift came in a year after Scalia’s confirmation, when President Ronald Reagan nominated Appeals Court Judge Robert Bork to the high court. Led by then-Judiciary Chairman Joseph Biden (Del.) and the late Sen. Edward Kennedy (Mass.), Democrats launched a blistering public relations offensive against Bork’s nomination, charging he was a radical conservative who would use the court to roll back the rights of minorities and women. Although Supreme Court nominations had been the focus of many political fights, Democrats used tactics normally reserved for campaigns to battle the Bork nomination, including using television and radio ads.
Bork’s nomination imploded, with Senators rejecting it by a 42-58 vote, and since then both parties have employed campaign-style tactics to lobby for or against Supreme Court selections.
And even middle-of-the-road candidates face a tough time fighting through the artillery to win Senate approval. Justice Sonia Sotomayor — whose record Republicans tried, but failed, to sift through to derail installment — was confirmed last year by a 68-31 Senate vote.
And while Kagan is expected to be confirmed later this summer, even the most hopeful Democrats acknowledge she is unlikely to get more than 65 Senate votes.
“The Senate itself has become polarized,” said University of Connecticut Professor David Yalof, an expert on the judicial confirmation process. Parties used to show greater deference to a president and his choice for the high court: “Given the amount of people who are far to the right or far to the left, it’s fairly hard to get people to go along with a nominee who they don’t agree with ideologically,” Yalof said.
And that dynamic, Collins argued, is limiting the number of viable candidates for the nine-member court.
“Some individuals seem to be applying these new standards that are narrowing the possible nominees,” Collins said. “I think it’s healthy to have a variety of experiences.”