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.
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