Now we see why there are pitched battles over Supreme Court nominees.
The Supreme Court decision in the LBGTQ case and the DACA ruling last week underscored why the nominations of justices and the political fights in the Senate over their confirmations are so monumental.
Supreme Court appointments are for a lifetime. Only 114 persons have ever served on the Supreme Court. Most justices used to serve for a little more than a decade but the average tenure now tops 26 years.
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Presidents covet the possibility of these appointments. Many presidents are lucky if they get to nominate a couple of justices. A Supreme Court vacancy never materialized while President Jimmy Carter held office. But Gerald Ford, who was not elected and only served as president for two-and-a-half years, got one appointment: Justice John Paul Stevens.
This is why Senate Democrats threatened to filibuster the nomination of Supreme Court Justice Neil Gorsuch in 2017. Senators filibustered the promotion of Associate Justice Abe Fortas to chief justice of the United States in 1968. But never before had a nominee – who wasn’t already on the Supreme Court – faced a potential filibuster of his or her confirmation.
And then there was Gorsuch.
So, Senate Majority Leader Mitch McConnell, R-Ky., took the extraordinary step of establishing a new Senate precedent to short-circuit a filibuster and usher Gorsuch’s nomination to confirmation.
Everyone saw how the Capitol devolved into vitriol, recriminations and opprobrium during the confirmation battle over Supreme Court Justice Brett Kavanaugh. The Senate narrowly confirmed Kavanaugh 50-48 after weeks of fighting about sexual assault accusations against him – and commentary about how much he liked to drink beer.
Capitol Hill hadn’t seen such intensity over a Supreme Court nominee since the incendiary hearings in the fall of November 1991 with Anita Hill over the nomination of Justice Clarence Thomas.
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We don’t even have to get into how the Senate torpedoed the nomination of Robert Bork, 52-48, in 1987. After the Senate defeated the Bork nomination, President Ronald Reagan subsequently nominated Douglas Ginsburg for the Supreme Court a few days later. But Ginsburg withdrew shortly after admitting he used marijuana as a college professor. Reagan finally settled on Anthony Kennedy, who the Senate confirmed.
Oh. And then there is Merrick Garland.
President Obama nominated Garland for the Supreme Court in early 2016 after the death of Justice Antonin Scalia. McConnell decided he wouldn’t consider filling any vacancy on the high court in an election year. The Senate Judiciary Committee never held a hearing for Garland.
Democratic senators suggested to Hillary Clinton that she renominate Garland if she won in 2016. But the GOP’s treatment of Garland only intensified anger on the left when President Trump unexpectedly prevailed. Trump has already scored two justices in Gorsuch and Kavanaugh. In addition, McConnell has dedicated much of the Senate’s floor traffic over the past several years to installing conservative jurists to federal courts.
So, after all of this energy to craft a conservative judiciary and a Supreme Court that tilts to the right, one can understand why the right is apoplectic about the recent rulings.
Gorsuch wrote the majority 6-3 decision in the case barring employers from firing workers due to their sexual identity. Chief Justice John Roberts provided the swing vote in the DACA case.
“You have a Supreme Court that appears to be legislating,” argued Sen. Marco Rubio, R-Fla. “What really troubles a lot of people is that some of the folks the Republican party has put on this bench..are actively becoming activists in the role that they’re playing. It’s concerning and frankly, undermines the purpose of the court.”
Many Republicans attacked Roberts – a frequent target of their derision. They still hold a grudge against him for not overturning ObamaCare in 2012. Roberts also sided with liberals on the court in 2019, blocking the Trump administration from adding a question over citizenship on the 2020 census forms.
“Judging is not a game. It’s not supposed to be a game. But sadly over recent years, more and more, Chief Justice Roberts has been playing games with the court to achieve the policy outcomes he desires,” charged Sen. Ted Cruz, R-Texas, in a feisty floor speech Thursday afternoon. “That’s not clever. That’s lawless. The decision today was lawless.”
“Chief Justice Roberts does it again, convoluting the law to appease the D.C. establishment,” blasted Rep. Jim Jordan, R-Ohio, the leading Republican on the House Judiciary Committee. “The court’s decision creates two standards of executive power. One for President Obama and another for President Trump.”
Sen. Tom Cotton, R-Ark., went even further than his GOP colleagues.
“If the chief justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa and get elected,” said Cotton. “I suspect voters will find his strange views no more compelling than do the principled justices on the court.”
So Republicans are in a period of serious buyer’s remorse. They’ve invested all of this time stocking the judiciary, and they’re not getting the judicial outcomes they want.
The fact that the Supreme Court never undercut ObamaCare haunts Republicans to this day. The DACA decision echoes, too.
But the rulings in both of those cases probably helped GOP legislators. Throwing out ObamaCare would have meant stripping millions of people of health insurance – almost instantly. Republicans never could engineer a bill to repeal and replace ObamaCare that would pass both chambers.
DACA’s just as intractable. In fact, DACA exists because Congress has failed to approve comprehensive immigration reform or move the Dream Act – legislation to give legal status to undocumented persons who came to the U.S. as children.
It’s hard to judge which issue is more vexatious to solve: immigration policy or health care.
When picking a Supreme Court justice, it’s always a roll of the dice for presidents – and those who wish to contour the high court from Capitol Hill.
President George H.W. Bush tapped David Souter for the Supreme Court in 1990. The National Organization for Women and NAACP opposed him, but in his years on the court, Souter frequently sided with liberals.
Justice Harry Blackmun emerged as one of the court's most liberal voices, despite his nomination by President Richard Nixon. Blackmun authored the 7-2 Supreme Court decision in Roe v. Wade, protecting the legality of abortion. Nixon selected Blackmun as part of an effort to shift the court to the right.
President Dwight Eisenhower appointed Earl Warren, a Republican and former California governor, as chief justice, and William Brennan as an associate justice. The Warren Court is considered by many to be the most liberal in U.S. history.
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An interviewer famously once asked Eisenhower if he made any mistakes as president.
“Yes,” replied Ike. “And they are both sitting on the Supreme Court.”
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