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."
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Between 1789 and 1894, 22 of 81 Supreme Court nominees failed to reach the bench as a result of being either rejected, withdrawn, or left unacted upon by the Senate.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.
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.
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.
The old contentiousness had returned. Richard Nixon, the first president since 1848 to enter the White House with the opposition party controlling both houses of Congress, had little trouble naming a new chief justice, Warren Burger. 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 over his purportedly racist beliefs and behavior. Although he was confirmed, 26 Senators voted against him after protracted hearings.
John Paul Stevens in 1975 and O'Connor in 1981 generated little controversy. 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.
Though often ugly in practice, thatreality is not as lamentable as some would have us believe. Of course it's nice to find consensus choices and avoid brutal Washington bouts. But the dislike of judicial confirmation fights stems in part from the hoary old myth that the Supreme Court somehow stands untouched by partisan politics. In truth, in a country full of vibrant and clashing political opinions, it's only natural that the two parties—and the Senate and the presidency—should grapple over the third branch of government. To fight over the next Supreme Court justice isn't to politicize the judiciary. It is to carry out what the framers intended.