In August of 1993, Clinton Supreme Court nominee Ruth Bader Ginsburg was confirmed in the Senate by a vote of 96-to-3. In the summer of 1994 Stephen Breyer, a second Clinton nominee, was confirmed by a similarly vast 89-to-9 majority. It doesn't take a Nate Silver to predict that current nominee Elena Kagan will fall far short of those vote totals, assuming that her nomination is allowed to proceed to an up-or-down vote on the Senate floor. (An informal poll conducted by Slate asking readers how many votes Kagan will receive has a mean and median of 63 votes.)
Aside from the fact that Elena Kagan was nominated while Solicitor General and Ginsburg and Breyer were both appellate judges, there isn't a significant degree of difference between the aforementioned nominees or the context within which they were nominated. Before his nomination by Jimmy Carter to the First Circuit, Breyer, like Kagan, was a member of the Harvard faculty. If anything, Ginsburg's background as a litigator for the ACLU provided her with an activist background considerably more substantial than any projects Kagan undertook as a legal scholar or an undergraduate at Princeton.
Like now, Democrats enjoyed a comfortable Senate majority (56 seats) in the 102nd Congress that summarily approved of Breyer and Ginsburg. And, with all due deference to Glenn Beck, Bill Clinton faced a conservative backlash as indiscriminately hostile as President Obama faces today. The only thing that has changed significantly has merely been the passage of time.
So who -- or what -- is to blame for the new normal concerning judicial nominees? There's a long answer, that bemoans the prematurely abbreviated career of Abe Fortas. And then there's a shorter answer that heaps a whole mess of blame on former Senate Majority Leader Tom Daschle.
In reaching for a way to impact judicial nominations while in the minority, Democrats during the Bush administration agreed upon a strategy of fighting Bush's nominees based upon ideology as opposed to qualifications -- a strategy that, as the New York Times noted following the confirmation of Justice Samuel Alito, failed miserably:
In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.
This Democratic tactic was far from a sea change -- the Republican delaying tactics faced by Sonia Sotomayor in 1997 when Clinton nominated her to the appellate court are indicative of the sort of gamesmanship that has become typical of modern judicial nominations. But the strategy set forth in the early 2000's by Senate Democrats -- and embraced by Barack Obama when he voted against John Roberts and joined a failed filibuster of Samuel Alito -- provided cover for a great deal of current Republican obstruction. And it will continue to provide cover for Republicans when they inevitably attempt to explain why they're refusing to vote for cloture on a clearly qualified high court nominee. Kagan will still almost definitely win confirmation to the Supreme Court, but it will almost surely be by the skin of her teeth -- or, to be more precise, Lindsey Graham's teeth.
Second, you assume that ideological arguments over Supreme Court nominees is only of recent vintage. Why? Read Supreme Power and see how polarizing some of the then Supreme Court justices were, especially as they struck down many parts of the New Deal. Before FDR got his chance to shift the balance by nominating pro-New Dealers, he did consider "packing" the Supreme Court by adding to the 9 members. Since no one now seems even remotely interested in expanding the Supremes from 9 to 11 or 13 (now that would be change we can believe in O), we are stuck with fighting "ideological" battles, if you will, or accepting the "milquetoast" hearings we will get from now on.
2) Thomas, was clearly unqualified for the bench and he actually did sexually harass Mrs Hill...
With Thomas, the Democratic majority refused to use its power to prevent the confirmation of Thomas to the bench. That sort of deference has a long tradition. However, one might speculate what would happen if Ms. Ginsberg decided to retire in 2011. Suppose the nominee to replace her faced confirmation hearings by a Republican majority Senate? Do you think they (the party of NO) would continue the tradition of deferring to the president?
Now, it is true that the then Democratic majority in the Senate (a majority that still had arch conservative Southern Democrats such as John Stennis) did deny Lyndon Johnson's attempt to elevate Abe Fortas to replace retiring Chief Justice Earl Warren. But, the problems did not stem from Fortas's constitutional views. Rather, they were ethical concerns that led not only to the rejection of his elevation, but his resignation from the court.
2. I find it rich coming from the party that wants us all to forget the 8 years of the Bush disaster to now blame Daschle from 1994 for the current republican confirmation circus.
3. While the author ignored the fact, it is important to note that Bush didn't exactly inspire confidence when he nominated Harriet Myers, his own personal attorney for the SCOTUS who was so unqualified, Bush's own party refused to endorse her nomination resulting in his withdrawl of the nomination. I bet the author can't cite a similiar appointment by a Dem president.
I, for one, can't wait till President Rand Paul nominates the 8th ultra-conservative to the Supreme Court in 2024, and this new court decides to overturn 60 years of racial desegregation when the Lester Maddox donut shop dares to deny a Muslim service and the case is appealed to the Supremes who then opt to rule on the validity of 1960s civil rights legislation. That would be priceless!
I can't wrap my mind around that possibility (or I refuse to).-LOL