Friday, July 08, 2005

A departure from, or reversion to, history?

An interesting piece of Supreme Court history in this David Greenberg article, The Judge Wars. It would probably be best to just quote the whole thing, but here are a few interesting excerpts:

The Senate of the 19th century was no rubber stamp. The politics of that period are known for their partisanship, and the judicial wars were no exception. Between 1789 and 1894, 22 of 81 Supreme Court nominees failed to reach the bench as a result of being either rejected, withdrawn, or left unacted upon by the Senate.The first Supreme Court nomination battle came in 1795, when George Washington chose John Rutledge as chief justice. When John Jay resigned in July 1795, Washington named Rutledge to succeed him using a recess appointment. But when it came time to confirm him, the Senate, although dominated by Federalists loyal to the president, refused to do so...
Many of Washington's successors... faced similar defeats. Andrew Jackson, for example, failed to win the appointment of his longtime associate Roger B. Taney in 1835... (Jackson successfully renominated Taney the following year.)
And so it went for the remainder of the century. John Tyler was thwarted by the Senate no fewer than five times. Nominees of Presidents Polk, Buchanan, Johnson, Grant, and Hayes all met significant resistance. Toward the end of the century, Grover Cleveland saw two nominees go down to defeat and a third insist his name be withdrawn before finally securing the appointment of his fourth choice, Edward White, to the bench.

From 1894 to 1968, the Senate rejected just one nominee, John J. Parker in 1930. Throughout these years, presidents enjoyed a relative free hand in making their choices—so much so that the Senate's more recent reassertion of its constitutional prerogative still strikes many contemporary observers as a departure from, rather than a reversion to, the typical historical pattern.

Only in the 1960s and early '70s did presidents begin to feel their autonomy again restrained. ... In 1967, Southern Democrats tried unsuccessfully to keep Lyndon Johnson from naming Thurgood Marshall to the court. Although Marshall's confirmation was never seriously in doubt, the passions raised during his hearings simmered.

The next year, Southern Democrats joined with Republicans to successfully filibuster Johnson's nomination of Abe Fortas, then an associate justice, to become chief justice. Johnson's other appointee at the time, Homer Thornberry (who had been poised to take Fortas' associate justice seat) was also kept off the bench.

But when Fortas resigned from the bench in 1969, Nixon saw two of his nominees to fill the seat—Clement Haynsworth and G. Harrold Carswell—defiantly rejected. William Rehnquist, nominated for yet another vacancy the next year, endured intense scrutiny... Although he was confirmed, 26 Senators voted against him after protracted hearings.

But the decision to make Rehnquist chief justice in 1986 was divisive; seven more senators voted against his elevation than had opposed his initial appointment. The Bork nomination followed the next year, followed by the 1990 skirmish over David Souter and the 1991 donnybrook over Clarence Thomas. Thus, even though Bill Clinton steered clear of fights by vetting his Supreme Court choices with Republican leaders beforehand, his aversion to conflict didn't really change the broader post-Fortas pattern: Almost every vacancy that has arisen in the last 38 years has given rise to ideological jockeying if not outright combat.

So, history, as always, is a guide, and it tells us that this experience may not be all that aberational. I think that we always like to believe that what ever we are going through at the time is always either the best or worst it's ever been. In reality, it's just another part of the cycle. The nomination process will be interesting, but maybe not all that unusual.

No comments: