The Perjury of Brett Kavanaugh

A Return to Civility in SCOTUS Nominations is Long Overdue

(Photo: Public Domain, Library of Congress)

On this day, September 15, 1981, The Republican-led Senate Judiciary Committee unanimously approved Republican-nominated Sandra Day O’Connor to become the first female justice of the Supreme Court of the United States. A few days later, on September 21st, O’Connor was confirmed by the U.S. Senate with a vote of 99–0. (According to Rebecca Loew, Senator Max Baucus of Montana was absent from the vote, and sent O’Connor a copy of A River Runs Through It as an apology. O’Connor became the 102nd Associate Justice of the U.S. Supreme Court.)

Since then, eleven justices have been appointed to the U.S. Supreme Court, with a twelfth confirmation and appointment imminent: Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, RBG, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch.

103. The Republican-led Senate Judiciary Committee reported Republican-nominated Scalia unanimously out of committee. The full Senate debated Scalia’s nomination only briefly, confirming him 98–0 on September 17, 1986.

104. The Republican-led U.S. Senate confirmed Republican-nominated Kennedy on February 3, 1988, by a vote of 97 to 0. Absent from the vote were three Democrats: Paul Simon and Al Gore who were campaigning for the Democratic nomination for US President and Joe Biden who was sick.

105. In 1990, the Democrat-led Senate Judiciary Committee reported Republican-nominated Souter out the committee by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9.

106. In the 1991 Thomas’ confirmation process, the Democrat-led Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Republican-nominated Thomas was confirmed by a 52–48 vote by the Democrat-controlled US Senate on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination.

107. The Democrat-led United States Senate confirmed Democrat-nominated RBG by a 96 to 3 vote on August 3, 1993.

108. Democrat-nominated Breyer was confirmed by the Democrat-controlled US Senate on July 29, 1994, by an 87 to 9 vote.

109. On September 22, 2005, the Republican-controlled Senate Judiciary Committee approved Republican-nominated John Roberts’s nomination by a vote of 13–5, with Senators Ted Kennedy, Richard Durbin, Charles Schumer, Joe Biden and Dianne Feinstein casting the dissenting votes. Roberts was confirmed by the full Senate on September 29 by a margin of 78–22. All Republicans and the one Independent voted for Roberts; the Democrats split evenly, 22–22. Roberts was confirmed by what was, historically, a narrow margin for a Supreme Court justice. However, all subsequent confirmation votes have been even narrower.

110. In 2005, Republican-nominated Samuel Alito was reported out of the Republican-led Senate Judiciary Committee on a 10–8 party-line vote. After a failed filibuster attempt by MA Senator John Kerry, on January 31, the Senate confirmed Alito to the Supreme Court by a vote of 58–42, with four Democratic senators voting for confirmation and one Republican and an Independent voting against.

111. On July 28, 2009, the Democrat-led Senate Judiciary Committee approved Democrat-nominated Sotomayor; the 13–6 vote was almost entirely along party lines, with no Democrats opposing her and only one Republican supporting her. On August 6, 2009, Sotomayor was confirmed by the full Senate by a vote of 68–31. The vote was largely along party lines, with no Democrats opposing her and nine Republicans supporting her.

112. On July 20, 2010, the Democrat-led Senate Judiciary Committee voted 13–6 to recommend Kagan’s confirmation to the Democrat-led US Senate. On August 5th the full Senate confirmed her nomination by a vote of 63–37. The voting was largely on party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing.

113. On April 3, 2017, the Senate Judiciary Committee approved the Republican-nominated Gorsuch nomination out of committee along a party-line vote of 11–9. On April 6, 2017, Senate Democrats filibustered the confirmation vote of Gorsuch, after which the Republicans invoked the so-called “nuclear option”, allowing a filibuster of a Supreme Court nominee to be broken by a simple majority vote. On April 7, 2017, the Republican-led US Senate confirmed Gorsuch’s nomination to the Supreme Court by a 54–45 vote, with three Democrats joining all the Republicans in attendance.

It is worth noting, that only from 2009–2011 in the 111th Congress did either party have a super-majority. In most other years, the U.S. Senate was split roughly 50-50, plus or minus two to 5 seats.

What has happened? We have increasingly politicized the Court, we have nominated more and more ideological candidates to the U.S. Supreme Court instead of nominating people, we’re nominating party. A return to civility in SCOTUS nominations is long overdue.