Within hours of the death of Justice Ruth Bader Ginsburg on Friday, the titanic battle began over her successor, especially over whether President Donald Trump or the winner of November’s election should appoint her successor.
This is just the latest chapter in five decades of judicial confirmation wars that have grown increasingly fierce as presidents have moved toward selecting nominees based on ideology, with senators evaluating them on this basis, using any and all tactics to secure victory. Understanding the roots of the battle and how it escalated reveals that a broader systemic fix is needed to forestall destruction of the Supreme Court’s legitimacy.
While many conservatives argue that the confirmation wars began with the Democratic Senate’s bipartisan rejection of President Ronald Reagan’s 1987 nomination of Judge Robert Bork to serve on the Supreme Court – giving us the verb “to bork” to indicate obstruction – that claim is historically inaccurate.
Actually modern political wrestling over judicial nominations began in June 1968 when Chief Justice Earl Warren announced his retirement. President Lyndon Johnson decided to elevate Associate Justice Abe Fortas to the chief’s slot, while replacing Fortas with Judge Homer Thornberry, a former member of Congress.
Fortas’s nomination should have been safe: Democrats had an overwhelming Senate majority and the Senate had only rejected one high court nomination since 1894. Johnson had also secured support from Senate Minority Leader Everett Dirksen, R-Ill., and Sen. Richard Russell, D-Ga., the leader of the conservative Southern wing of the Senate Democratic Caucus who was also a duck-hunting buddy of Thornberry’s.
But anger over the Supreme Court’s recent decisions on issues including integration, criminal procedure and school prayer had left conservatives stewing for a fight. A group of 18 Senate Republicans immediately signed a letter declaring that the next president ought to choose Warren’s replacement. Then Senate Judiciary Committee Chairman James Eastland, D-Miss., a Southern conservative, banded with allies to hold the nomination in committee for the remainder of the summer. They battered Fortas over court decisions they disliked – including those predating his time on the court.
When ethical issues emerged related to payments Fortas received for teaching a course, they imperiled the nomination by providing a nonpartisan, nonideological reason for opposition. In the end Fortas’s supporters failed to muster sufficient support to cut off a then-unprecedented filibuster, dooming the nomination.
Johnson declined to try to push through another choice, asserting that “our constitutional system” would be better served with Warren in place until, “emotionalism subsides, reason and fairness prevail.” Conservatives had thrown the kitchen sink at Fortas, covering their ideological motives at a time when rejecting a nominee for ideological reasons alone would have been politically unacceptable. And it had worked.
Liberals followed suit, using the same tactics to challenge President Richard Nixon’s judicial appointments. While Nixon first replaced Warren with Warren Burger – a conservative federal appeals court judge – when he attempted to fill the next open seat, the Senate rejected Nixon’s initial choice, Judge Clement Haynsworth. In a vindictive move, the president then chose an unqualified racist, Judge Harrold Carswell. After the Senate rejected Carswell too, Nixon abandoned his goal of strengthening his standing with Southern conservatives, instead selecting the best man at Burger’s wedding, Minnesotan Harry Blackmun, who sailed to confirmation. Nixon also was successful in appointing the arch-conservative (by the day’s standards) William Rehnquist, to be associate justice in 1971. While a substantial number of liberal senators voted against Rehnquist and interrogated his views on race, they couldn’t drag out the nomination to let opposition build because senators were eager to head home for Christmas.
Both Presidents Gerald Ford and Reagan sidestepped ideological battles, choosing well-qualified moderates in John Paul Stevens and Sandra Day O’Connor to fill vacancies in 1975 and 1981, neither of whom sparked much of a fight. The conservative Antonin Scalia was also unanimously confirmed, after Senate liberals had unsuccessfully devoted their energy to fighting Rehnquist’s elevation to chief justice in 1986. And even liberals understood that Scalia’s conservative ideology didn’t overshadow his legal brilliance.
During the 1986 confirmations for Rehnquist’s appointment to be chief justice and Scalia’s appointment to be associate justice, senators argued over whether ideology alone was even a proper area of inquiry, let alone a legitimate reason for rejecting nominees – something that would become the norm in decades to come.
But the rise of the conservative lawyers’ group the Federalist Society, of which Scalia was an intellectual godfather, made ideological outlook a priority in the decades to come, pushing future Republican judicial nominees to the right. This conservative effort to reshape the judiciary has left liberals with as much ideological grievance toward conservative jurists as conservatives had toward the Warren Court in the 1960s.
Even in the 1980s, liberals wouldn’t countenance every brilliant conservative Supreme Court nominee. In 1987, the Reagan administration ignored warnings from then-Senate Judiciary Committee Chairman Joe Biden, D-Del., that another intellectual godfather of the Federalist Society, Robert Bork, would be an unacceptable replacement for the moderate Justice Lewis Powell. Biden and Sen. Ted Kennedy, D-Mass., led a liberal charge painting Bork as far outside of the mainstream and dangerous to the rights of women and racial minorities – and they won. Bork engaged expansively on his legal views during lengthy confirmation hearings, lending credence to charges that he lacked empathy and was an extremist. This cost him the support of moderates in both parties.
The failed Bork nomination offered several lessons that shaped future confirmations. Conservatives saw that the Reagan White House was outmaneuvered by well-organized liberal opponents of Bork, which helped shape public opinion. Second, nominees and White Houses learned that a lengthy paper trail and open discussion of a nominee’s views could have a disastrous impact on confirmation prospects. Thereafter, nominees scrupulously avoided expansively discussing their views during the confirmation process.
These lessons helped produce the easy confirmations of Justices Anthony Kennedy, David Souter, Ginsburg and Stephen Breyer with broad bipartisan support over the next seven years. Unlike Bork, Souter and Kennedy did not have controversial paper trails that could be wielded against them, and in the cases of Kennedy, Ginsburg and Breyer, the White House consulted the Senate opposition and selected nominees not considered highly objectionable.
In 1991, a Democratic Senate even narrowly confirmed Clarence Thomas, despite allegations of sexual harassment and the promise that Thomas would move the court far to the right. Thomas survived in part because of a concerted and well-organized campaign in support of his nomination.
But the judicial wars expanded in the late 1990s. With Republicans controlling the Senate, several of President Bill Clinton’s nominees waited years for votes, and the Senate rejected Missouri Supreme Court Justice Ronnie White for a federal-district court judgeship. Democrats accused Republicans of being hostile to female nominees and nominees of color, and of slow-walking Clinton’s nominees to hold seats open for a potential Republican president. Even Rehnquist criticized the Senate for its slow pace in processing nominations.
In return, Democrats inaugurated the practice of filibustering appellate court judges during George W. Bush’s presidency. Republicans returned the favor during Barack Obama’s presidency, obstructing judicial nominees to the extent that they could. Amid rising frustration and Republican refusal to countenance any nomination for three vacancies to the D.C. Circuit Court of Appeals, Senate Majority Leader Harry Reid, D-Nev., pulled the trigger on the “nuclear option” – a long threatened rule change that would allow 51 senators to cut off debates on judges – for lower court nominations.
After Republicans regained control of the Senate and Scalia died in 2016, Senate Majority Leader Mitch McConnell, R-Ky., refused to grant Obama’s nominee Merrick Garland so much as a hearing or a vote even though the nomination occurred long before what had slowly become a traditional election-year cutoff for confirmations (something now known as the Thurmond rule). While the precise origins of such a tradition are murky, since 1968’s Fortas debacle under Johnson, such a halt has become an accepted practice. A search of Senate votes indicates that in the 12 presidential election years between 1972 and 2016, only 13 total district court and court of appeals judges received votes between August and the end of the year. Five were district court judges confirmed in December 2012 after Obama won reelection and Senate Democrats expanded their majority.
Now McConnell threatens the ultimate offense in this ongoing battle: flip-flopping from his 2016 position in violation of decades of precedent and confirming a replacement for Ginsburg on the eve of the election.
Both sides have escalated obstruction of judicial nominees, because the real root of these disagreements has long been ideological. It was the decisions of the liberal Warren Court that angered the right, and subsequent decisions by a conservative Supreme Court on everything from voting rights to money in elections that have enraged the left. Over time, as Congress has become less functional and both sides have sought refuge in the courts, the stakes for appointment battles have increased.
Because of this, we are unlikely to return to the easy confirmations that were standard as recently as the 1980s and 1990s – absent major structural changes in how the court is composed to better align with Americans’ ideas about rights and the law. Proposals like set terms for justices and a guaranteed up or down vote for nominees could de-escalate each fight and ensure that the Supreme Court cannot grow deeply out of touch with society.
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Rosenwald is one of the co-editors of Made by History, a fellow at the University of Pennsylvania and author of “Talk Radio’s America.”