A History Of Supreme Court Nominations, And Fights Over Confirmations

Senate pushback on nominations for Supreme Court justices has been more common than most people think, especially over the last half-century.

LOURDES GARCIA-NAVARRO, HOST:

Soon after President Trump nominated Neil Gorsuch to the Supreme Court, Senate Democrats began talking about resisting and even filibustering that nominee. Senate pushback on Supreme Court justices has quite a history, especially over the last half-century.

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GARCIA-NAVARRO: And who better to give us that history than NPR's senior editor and correspondent Ron Elving? So get your coffee, settle in and take professor Ron's class on Supreme Court battles.

RON ELVING, BYLINE: If you were old enough to listen to the news 25 years ago, you probably remember this.

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CLARENCE THOMAS: This is a circus. It's a national disgrace. And from my standpoint as a black American, as far as I'm concerned, it is a high-tech lynching for uppity blacks.

ELVING: That was Supreme Court nominee Clarence Thomas during his confirmation hearings before the Senate Judiciary Committee in 1991. Thomas was appointed by President George H.W. Bush and was accused of sexual harassment by a former colleague, Anita Hill. But he won confirmation by the narrowest margin in more than a century, 52-48.

And let's not forget this.

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RONALD REAGAN: I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork.

ELVING: Some people date the Senate's descent into hyperpartisan politics to that event. The Bork process was a donnybrook, over 114 days in the summer and fall of 1987. Although other Reagan appointees had sailed through the Senate, the Democrats had just recaptured the majority and were ready to rumble. Here's Senator Edward Kennedy of Massachusetts explaining his vote.

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EDWARD KENNEDY: Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids and schoolchildren could not be taught about evolution.

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KENT CONRAD: Roll call number 348, the nomination of Robert H. Bork - the yeas are 42. The nays are 58. The nomination is not confirmed.

ELVING: A humiliating defeat for him and for the president. Republicans blame the campaign tactics of anti-Bork interest groups for unfairly portraying him as heartless. And that added a new word to our vocabulary, as our own Nina Totenberg explains.

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NINA TOTENBERG, BYLINE: Bork's name became a symbol of conservative grievance, and a new verb was born - to bork - defined in the dictionary as to defame or vilify a person systematically.

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ELVING: Going back through history, the nominees who produced the biggest fights were sometimes the choices of popular and powerful presidents. Even George Washington hit a wall when he tried to replace his first chief justice in 1795. His nominee, John Rutledge, was already serving on the court as a recess appointment. But then he gave a big public speech trashing a treaty that the Senate was about to ratify with a large majority. The Senate didn't like that and took it out on Rutledge who returned to South Carolina in disgrace and even attempted suicide.

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ELVING: Lyndon Johnson was known as the master of the Senate. But as president, he was unable to elevate Abe Fortas from associate justice to chief justice. It was 1968. LBJ was in the final months of his presidency. Republicans seized on Fortas' ethics questions and mounted a filibuster.

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UNIDENTIFIED REPORTER: These, along with Republicans hopeful of naming their own chief justice after January, formed a coalition powerful enough to beat a motion for cloture on the five-day debate. At the request of Justice Fortas, on October 2, President Johnson withdrew the nomination.

ELVING: When Richard Nixon became president the next year, he had to fill that vacancy. His first try, Clement Haynsworth, was a federal judge in South Carolina. He was intended to appeal to Southern Democrats, but he was seen as too friendly toward segregation and too unfriendly towards organized labor. He lost in the Senate by 10 votes.

Nixon next tried G. Harrold Carswell of Georgia, who also proved vulnerable on race-related issues and was described by some as a mediocre judge. That prompted this memorable reply from Nebraska Republican Senator Roman Hruska.

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ROMAN HRUSKA: Even if he were mediocre, we can't have all Brandeises and Cardozos and Frankfurters and stuff like that there. There are a lot of mediocre judges and people and lawyers. Aren't they entitled to a little representation and a little chance?

ELVING: Carswell did a little better than Haynsworth, losing by only six votes. Nixon then nominated a man named Harold Blackmun, who was confirmed 94-0 as a supposedly completely non-controversial pick. Less than three years later, he would write the decision in the case of Roe v. Wade, legalizing abortion in all 50 states. At this stage, no one expects Neil Gorsuch to lose his confirmation bid. But in recent history, the hearings have been the place in time for the real drama to unfold.

Ron Elving, NPR News, Washington.

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