It remains unfathomable that Republicans, with their skimpy 40 votes, will actually be able to kill Sonia Sotomayor’s Supreme Court nomination. And, for all their frothing over her supposed “racism,” it remains puzzling why they’d even want to try: her nomination is widely popular with the public and, all things considered, she’s probably more moderate than other candidates Barack Obama could have gone with.
Still, even as she paid courtesy calls on Judiciary Committee members on Tuesday, key Senate Republicans were making it clear that they intend to make Sotomayor’s path to confirmation as arduous—and long—as possible. And to the extent this obstructionism rankles Democrats, who’d rather be done with the process and on to other business by July, they really have no one to blame but themselves.
It’s become customary to point to Senate’s 1987 rejection of Robert Bork as the birth of a new, hyper-partisan brand of Supreme Court politics. Bork, by all accounts a qualified, ethical judge and scholar, was defeated because the Senate’s majority Democrats, under heavy pressure from their party’s interest-group establishment, deemed him too conservative.
Previously, even ideologues—like Antonin Scalia, confirmed on a 98-0 vote in 1986—had faced little formal opposition, provided they could establish their basic fitness for the job.
At first glance, the right’s hysterical response to Sotomayor’s selection is merely a continuation of the game that both parties began playing 22 years ago. But it really isn’t. The Bork battle was actually followed by a period of relatively tranquil nominations, with the parties reverting to their less polarized, pre-1987 postures.
For example, after Bork’s defeat (and after his replacement, Douglas Ginsburg, withdrew amid revelations of youthful marijuana use), the Senate in February 1988 approved Anthony Kennedy’s nomination on a 97-0 vote. Just over two years later, amid furious protests from abortion-rights supporters who branded him a “stealth” nominee,” David Souter was approved on a 90-9 vote.
That margin is particularly noteworthy since Souter was chosen by an ostensibly pro-life president, George H.W. Bush, to replace William Brennan, a key court supporter of the Roe v. Wade decision. Bush swore that he hadn’t quizzed Souter on abortion during the selection process, but, realistically speaking, there was every reason to believe that Souter would be a new, and potentially decisive, anti-Roe vote on the court.
And yet the vast majority of Democrats voted for him anyway. When his nomination reached the floor, just three Democrats, Ted Kennedy, Alan Cranston and Brock Adams, spoke out against him and only six others (Barbara Mikulski, Bill Bradley, Frank Lautenberg, Quentin Burdick, John Kerry and Daniel Akaka) voted that way.
Instead, most agreed with Joe Biden, then the Judiciary Committee chairman, who explained: “Our overwhelming approval is not a sign that the Senate intends to be lax about exercising its advise-and-consent power, or intends to use that power only to screen out extremist nominees. Rather, it is a sign that we take this power seriously, and that we intend to exercise it responsibly. And in doing so, Judge Souter falls within the sphere of candidates acceptable to the Senate.”
Yes, it’s true that Souter, once on the court, quickly proved himself to be a liberal—and a key vote for Roe. But no Democrat knew or expected that in October ’90. And Republicans showed the same restraint when Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994, respectively.
Ginsburg’s story is particularly significant, since Clinton nominated her to replace Bryon White, one of the court’s most conservative members, and stressed that he’d only done so after satisfying himself that Ginsburg was a firm abortion supporter. Despite this, the G.O.P. rolled over for Ginsburg. Her nomination sailed through the Senate and passed 96-3, with only Jesse Helms, Don Nickels and Bob Smith voting against her.
Breyer, chosen to replace Harry Blackmun, the author if the 1973 Roe decision, cleared the Senate on an 87-9 vote in ’94. And opposition to him was mainly non-ideological, stemming instead from a disastrous investment Breyer had made in a Lloyd’s of London subsidiary.
In reality, then, the only nomination after Bork’s to spark similar partisan warfare was Clarence Thomas’ in 1991. But that battle had to do with Anita Hill’s sexual harassment claims; before she emerged, Thomas had been on course for a fairly easy confirmation.
But Democrats reverted to their Bork instincts in 2005, when Sandra Day O’Connor retired and, just a few months later, Chief Justice William Rehnquist died. George W. Bush’s two nominees (after the Harriet Myers debacle) were both impeccably qualified: John Roberts and Samuel Alito. It was also clear that they were both conservative. Since O’Connor was the swing vote for a broader interpretation of Roe, Alito’s selection to replace her was especially significant.
Still, Democrats had previously let Souter go despite their assumption that he would shift the court in a pro-life direction, just as Republicans had let the pro-choice Ginsburg go in ’93. This time, though, Democrats opted to fight. They mustered limited opposition to Roberts (who was confirmed on a 78-22 vote), instead focusing their efforts on Alito. Ultimately, they just didn’t have the numbers and, after a (very late and very feeble) filibuster attempt, he was approved, 58-42. But the process had been bitter and protracted, and rather reminiscent of 1987.
And now, from the G.O.P.’s standpoint, it’s payback time. They are just as hopeless to stop Sotomayor as the Democrats were to derail Alito. But after that experience, they’re in no mood to roll over.
Of course, Democrats paid no public price for fighting Alito. He wasn’t a compelling figure to start with, and by the end of the process, his negative numbers had become alarmingly high. Sotomayor, who would be the first Hispanic and only the third-ever woman on the court, figures to attract broader support—meaning there’s real backlash potential for the Republicans as they fight her.
But if the overheated rhetoric we’re now hearing becomes customary in the future Supreme Court nominations, then it can be said that the turning point wasn’t Robert Bork in 1987 but Samuel Alito in 2005.