Borking didn't start with Bork.

The history behind current events.
July 6 2005 6:39 PM

The Judge Wars

Borking didn't start with Bork.

As pundits discuss the impending battle over Supreme Court Justice Sandra Day O'Connor's successor, they keep lamenting how Ronald Reagan's 1987 failure to place Robert Bork on the court ushered in a baleful period of ideological conflict. We're told that in this "post-Bork era" we should expect another "Bork-style judicial confirmation fight." But the Bork battle was nothing new. Fighting over Supreme Court nominees is practically built into the Constitution. And an actively involved and sometimes obstreperous Senate has been the norm, not the exception, in our past.

Article II of the Constitution puts the power of judicial appointments into the hands of both the executive and legislative branches of government, all but guaranteeing tugs-of-war over the judiciary. Arguing for the ratification of the Constitution, Federalists maintained that an active Senate, charged with providing "advice and consent" on appointments, would check the power of the presidency. "If by influencing the president be meant restraining him, this is precisely what must have been intended," Alexander Hamilton wrote in Federalist No. 77. Or as Republican Sen. Orrin Hatch put it more recently, "We are not a rubber stamp."

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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Between 1789 and 1894, 22 of 81 Supreme Court nominees failed to reach the bench as a result of being either rejected, withdrawn, or left unacted upon by the Senate.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—largely because Rutledge had spoken out against the controversial Jay Treaty, which settled a series of post-Revolution conflicts with Britain.

Many of Washington's successors, even the most powerful ones, faced similar defeats. Andrew Jackson, for example, failed to win the appointment of his longtime associate Roger B. Taney in 1835; the Senate was unhappy that Taney, while serving as Jackson's treasury secretary, had helped him kill off the Bank of the United States. (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.

Yet as the 20th century dawned, Senate opposition to Supreme Court nominees diminished. 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.

Hugo Black. Click image to expand.
Hugo Black

The nature of the confirmation process changed mainly because the presidency assumed greater dominance as America became a global power and the federal government began tackling problems brought on by immigration and industrialization. With the New Deal, World War II, and the Cold War, the executive branch swelled into what became known as the imperial presidency. (Of course, even in these years of growing presidential power, a few nominees still inspired fierce Senate opposition, notably Louis D. Brandeis in 1916 and Hugo Black in 1937.)

Only in the 1960s and early '70s did presidents begin to feel their autonomy again restrained. Not coincidentally, this change occurred as Americans were growing suspicious of the imperial presidency. White Southerners were the first to bridle at the federal government's power, for its support of black civil rights. But they were soon joined by anti-tax conservatives, anti-establishment New Leftists, and civil-libertarian liberals. Responding to these constituencies, the Senate again began to play an active role in judicial confirmations.

Thurgood Marshall. Click image to expand.
Thurgood Marshall

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.

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