With Justice Anthony Kennedy’s announced retirement from the Supreme Court, we can expect a great deal of bitterness from Democrats who are powerless to stop the nominee from President Trump and the slim Republican majority in the Senate. Such bitterness is not without precedent, and the data show this isn’t really a “both sides” issue. The bitterness tends to come from the Democratic side of the aisle.

Looking back over the past eight nominations, half were from Democratic presidents and half from Republican presidents, yet the percentage of opposition votes were lopsided.



Chart by Tim Kane

The four Democrat-appointed justices currently on the Supreme Court received a combined 88 affirmative votes from Republican senators, while receiving 79 negative votes. That means, on average, a majority of Republican senators voted to confirm the nominations of Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor, and Elena Kagan, while 48 percent were No votes.

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Do the same math for Democratic senators voting on Republican nominees, and you get a different result: Of all the votes by Senate Democrats in consideration of the four Republican nominees, 79 percent were in opposition. That is, barely a fifth of Democratic senators were willing to support the nominations of Justices Clarence Thomas, John Roberts, Samuel Alito, and Neil Gorsuch.

These numbers don’t include the most partisan nomination vote of modern history, when Democrats held a solid Senate majority and voted down Robert Bork on purely ideological grounds in 1987. That infamous vote killed the integrity of judicial nominations. As Andrew Cohen wrote in The Atlantic a few years back: “The self-defeating lesson which official Washington took from the political savagery of the 1987 proceedings was that nominees were better off saying nothing publicly about their views of the law and were better off serving up empty platitudes when backed into a corner by their Judiciary Committee inquisitors.”

In raw vote terms, the three most contentious confirmations were for conservative nominees. Gorsuch suffered 43 Nay votes, all from Democrats, in 2017. Alito suffered 40 Nay votes from Democrats in 2006. And Thomas suffered 48 Nay votes in 1991. The only two nominees from the Left to face strong opposition were Kagan’s 36 Nay votes in 2010 and Sotomayor’s 31 Nay votes in 2009.

Clearly, the antagonism is not mutual. Democratic senators have a tendency to vote negative regardless of the nominee’s character, qualifications, experience, and ideology. Even David Souter suffered nine votes of opposition from Democrats during his 1990 confirmation, despite what was ultimately one of the more liberal voting records on the Court. Is this unbalanced posture (which long predates the current administration) of “Resistance” good for democracy? Is it good for giving voice to liberals? Only if voice means protest not participation.

The moral for the Trump administration is not to worry about opposition from the political Left. Recent history shows that Democrats will vote strongly against your nominee regardless whether that person is principled or pragmatic, experienced or novice, moderate or conservative. They have cried wolf one too many times.

The larger moral is that President Trump shouldn’t worry about his critics (as if that ever stopped him before). He can simply choose the best person for the job and know that his nominee is likely to win because, at some point, words don’t matter. Numbers do.

Tim Kane is the J.P. Conte Fellow in Immigration Studies at Stanford University's Hoover Institution and has twice served as a senior economist on the Joint Economic Committee of the U.S. Congress. He is the author of Balance: The Economics of Great Powers from Ancient Rome to Modern America (co-authored with Glenn Hubbard).