Supreme Court confirmations have not always seen the bitter partisan rancor that surrounds the fight over President Biden’s nominee Ketanji Brown Jackson.
The confirmation votes for Justices Antonin Scalia, the most prominent conservative jurist on the court for the last quarter century, and Ruth Bader Ginsburg, his counterpart on the left, were nothing like the Jackson furor.
Scalia was confirmed in a 98-0 vote in 1986. Ginsburg was confirmed in a 96-3 vote in 1993.
Many trace the starting point of this modern trend to 35 years ago when Senate Democrats mounted a successful campaign to derail the nomination of Reagan-nominated judge Robert Bork.
Recent years have seen Senate Republicans respond in kind, shattering norms and sidestepping procedural barriers on their way toward cementing a 6-3 conservative supermajority that now seems poised to dismantle Roe v. Wade, expand the Second Amendment and pare back affirmative action.
Here are key events that helped turn Supreme Court confirmations into partisan warfare.
The Senate’s rejection of President Reagan’s nominee Robert Bork in 1987 fundamentally reshaped the political dynamics of Supreme Court confirmations.
By painting Bork as an ideological extremist, Senate Democrats, led by Sen. Edward Kennedy (D-Mass.), mobilized public opposition to the staunchly conservative judge and effectively derailed his nomination.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy,” Kennedy said on the floor of the Senate.
Bork’s nomination was rejected by a vote of 42-58.
For conservatives, the affront was compounded when Reagan’s next pick for the bench, Anthony Kennedy, later emerged as the court’s swing vote, often casting decisive votes alongside the court’s more liberal members. The Bork episode left deep wounds that would fuel Republican recriminations and retaliation.
The next big Supreme Court confirmation battle came during the 1991 hearing for Clarence Thomas, a nominee of President George H.W. Bush and only the second Black American to be tapped for the bench.
Thomas seemed to be on a glide path toward confirmation when allegations surfaced that he had sexually harassed Anita Hill when Thomas was a government attorney and she was his assistant.
The Senate Judiciary Committee, headed by then-Sen. Joe Biden (D-Dela.), heard explosive testimony from Hill, who alleged Thomas had repeatedly made crude and sexually explicit remarks in the workplace.
Thomas forcefully denied the charge and accused his critics of engaging in a “high-tech lynching.”
“This is a circus. It’s a national disgrace,” Thomas said during the hearings. “And from my standpoint as a Black American, as far as I’m concerned, it is a high-tech lynching for uppity Blacks, who in any way deign to think for themselves. And it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured, by a committee of the U.S. Senate rather than hung from a tree.”
Thomas was confirmed by a vote of 52-48, with support from a handful of Democrats. Biden voted against Thomas’s confirmation.
Merrick Garland
President Obama tapped Merrick Garland to replace the late conservative icon Justice Antonin Scalia after his death in early 2016. Democrats had hoped that Garland, a moderate liberal, would garner the kind of bipartisan support he received in 1997 when confirmed to a seat on the U.S. Court of Appeals for the D.C. Circuit.
But Senate Republicans under Majority Leader Mitch McConnell (R-Ky.) had other plans. The Senate GOP didn’t just deny him votes but went so far as to deny Garland a hearing. Preventing Obama from seating a nominee was a position endorsed by then-candidate Donald Trump.
“I think it’s up to Mitch McConnell and everyone else to stop it. It’s called delay, delay, delay,” Trump said during a Feb. 13, 2016, presidential debate that occurred hours after Scalia’s death.
Republicans’ reason for the blockade was that it would be improper to seat a justice in an election year. But they would later abandon that principle when they confirmed Amy Coney Barrett as Trump’s third Supreme Court nominee just days before the 2020 election.
Nuclear Option
Modern judicial wars were also stoked through a procedural move by McConnell. Previously, the threshold to advance a Supreme Court nominee was 60 votes. But in 2017, to clear the way for Trump nominee Neil Gorsuch’s confirmation, McConnell lowered that threshold to a simple majority. In a floor speech defending the maneuver, McConnell explicitly referenced Democrats scuttling of Bork’s nomination three decades earlier.
“It is a struggle that escalated in earnest when Democrats and leftwing special interests decided to wage war on President Reagan’s nominee in 1987, Robert Bork. Polite comity went out the window as Democrats launched one vicious personal attack after another — not because Bork lacked qualifications or suffered some ethical failing, but because his views were not theirs,” McConnell said in April 6, 2017 remarks.
Gorsuch was confirmed the following day, 54-45, with only two Democratic yes votes.
Brett Kavanaugh
The hearing for Trump’s second nominee to the high court, Brett Kavanaugh, ignited a political firestorm. With historical parallels to Thomas’s hearing, 11th-hour allegations of the nominee’s sexual impropriety nearly thwarted his confirmation.
Emotions ran high as Christine Blasey Ford, a psychology professor, testified that Kavanaugh had sexually assaulted her decades earlier when they were teenagers. Ford’s account prompted widespread condemnation of Kavanaugh, as well as a fierce and, at times bitter, denial by the nominee, who called the hearing “a grotesque and coordinated character assassination.”
“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups,” Kavanaugh said.
Kavanaugh was confirmed 50-48, with Sen. Joe Manchin (D-W.V.) as the only Democratic yes vote.
Amy Coney Barrett
The death of the 87-year-old liberal stalwart Ginsburg in fall 2020 created a Supreme Court vacancy some seven weeks before Trump and Biden would face off in the election. Within hours of Ginsburg’s death, McConnell reportedly told Trump that the GOP-held Senate would confirm her replacement, and that Trump should nominate Amy Coney Barrett.
To Democrats who were still incensed over what they considered the theft of Scalia’s vacant seat in 2016, ramming through Barrett’s confirmation a week before Voting Day — despite having previously opposed election-year confirmations in Garland’s case — was the height of hypocrisy.
Barrett’s confirmation garnered no Democratic support and created the court’s current 6-3 conservative majority.
Jackson’s nomination marked a number of firsts. She made history by becoming the first Black woman to be nominated to the Supreme Court. And Jackson is the first Democratic-nominated candidate of the post-Trump era, when judicial wars escalated dramatically.
During hearings last month, several GOP members of the Senate Judiciary Committee sought to portray Jackson as a progressive caricature on the wrong side of America’s culture war: soft-on-crime, including in her sentencing of child sex abusers and pro bono work representing Guantanamo Bay detainees; a proponent of critical race theory; a science denier in matters of sex and gender.
Jackson has picked up at least three Republican votes and is expected to be confirmed as early as Thursday. But recent statements by some in the GOP have suggested that the partisan judicial wars are here to stay and could even ramp up further if Republicans retake the Senate in the midterms.
“If we get back the Senate and we’re in charge of this body and there is judicial openings, we will talk to our colleagues on the other side,” Sen. Lindsey Graham (R-S.C.) said last month. “But if we were in charge, (Jackson) would not have been before this committee. You would have had somebody more moderate than this.”