The Senate is expected to take action early Thursday afternoon that would permanently change the way the chamber considers Supreme Court nominees, marking the biggest escalation in the war over the high court that dates back several decades.
The Senate is set to vote on cloture to end debate on Judge Neil Gorsuch’s Supreme Court nomination at 11 a.m. Thursday, and Democrats have the more than 40 votes necessary to effectively filibuster his confirmation and prolong debate. In response, Senate Republican leadership has said it will deploy the “nuclear option,” in which it lowers the vote threshold required to confirm a Supreme Court justice to a simple 51-vote majority.
If one of the court’s left-leaning justices steps down before the end of Trump’s presidency, Thursday’s looming action means the bar for confirmation would be lower for future Trump selections. Now, the Senate is looking to confirm a replacement for conservative Justice Antonin Scalia, who died unexpectedly in February 2016. But soon, the Senate may need to fill a vacancy for an unabashed liberal such as Justices Ruth Bader Ginsburg or Stephen Breyer.
Scalia’s death created the vacancy that Republicans and Democrats have fought over for more than a year. But the opening shots in the latest judicial wars can be traced to shortly after the Senate confirmed the originalist justice 98-0 in September 1986.
The Bork battle
When Justice Lewis Powell retired in June 1987, President Ronald Reagan nominated Judge Robert Bork from the D.C. Circuit Court of Appeals to take his place one month later.
Soon after former President Gerald Ford introduced Bork at the Senate hearings on his high court nomination, the affair devolved into partisan bickering. Massachusetts Sen. Ted Kennedy proffered a blow aimed at Bork that greatly damaged his nomination.
“In Robert Bork’s America, there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork,” Kennedy said at the 1987 hearings. “President Reagan has said that this controversy is pure politics, but that is not the case.”
The line of attack was promulgated by liberal groups such as People for the American Way, which ran ads attacking Bork. The group now is opposing Gorsuch.
“Robert Bork wants to be a Supreme Court justice, but the record shows that he has a strange idea of what justice is,” says actor Gregory Peck, the narrator in a 1987 People for the American Way ad attacking Bork. “He defended poll taxes and literacy tests, which kept many Americans from voting. He opposed the civil rights law that ended whites-only signs at lunch counters.”
The invective against Bork marked the first time a confirmation battle was fought largely on ideological grounds, not on qualifications or any past scandals. The attacks arguing that Bork opposed civil rights largely appear to stem from an article he wrote for the New Republican in 1963, titled, “Civil Rights — A Challenge.”
Bork was also forthcoming in answering questions in his Senate hearings on his nomination, with his answers including his justification for criticism he offered of other cases and past precedents. After Bork, subsequent nominees were coached carefully and learned not to answer such questions.
Bork’s nomination failed by a 42-58 vote in the Senate, and Justice Anthony Kennedy would fill Powell’s slot in 1988. Bork’s name gave rise to the term “borking” that is used to describe the obstruction of a judicial nominee’s confirmation through the vilification of that individual.
The Clarence Thomas fight
The scurrilous nature of the Senate’s hearings on Judge Clarence Thomas’s high court nomination by President George H.W. Bush forever changed the tone of Supreme Court confirmation battles.
Thomas, a D.C. Circuit Court of Appeals judge who filled Bork’s seat, faced allegations of sexual harassment from Anita Hill, a law professor and former assistant of Thomas in 1991. Hill claimed Thomas asked her out socially several times despite her efforts to rebuff him and talked to her about watching bestiality and group sex scenes in pornographic flicks.
“On several occasions, Thomas told me graphically of his own sexual prowess,” Hill testified at the hearings. “Because I was extremely uncomfortable talking about sex with him at all, and particularly in such a graphic way, I told him that I did not want to talk about these subjects. I would also try to change the subject to education matters or to nonsexual personal matters, such as his background or his beliefs. My efforts to change the subject were rarely successful.”
Thomas categorically denied the allegations during the hearings, which spanned more than a month in length.
“The first I learned of the allegations by professor Anita Hill was on September 25, 1991, when the FBI came to my home to investigate her allegations,” Thomas testified. “When informed by the FBI agent of the nature of the allegations and the person making them, I was shocked, surprised, hurt, and enormously saddened.”
“I have been wracking my brains, and eating my insides out trying to think of what I could have said or done to Anita Hill to lead her to allege that I was interested in her in more than a professional way, and that I talked with her about pornographic or X-rated films. Contrary to some press reports, I categorically denied all of the allegations and denied that I ever attempted to date Anita Hill, when first interviewed by the FBI. I strongly reaffirm that denial.”
Thomas was confirmed by a narrow margin of 52-48, and Hill became a hero of Thomas’ ideological opponents. As Thomas reached his 25th year on the bench last year, HBO produced a feature film “Confirmation” lionizing Hill. Similar efforts to call nominees’ character into question have been mounted during subsequent confirmation fights.
The Clinton years
Supreme Court confirmation fights over nominees from Democratic President Clinton were much less dramatic.
Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer were confirmed by 96-3 and 87-9 margins, respectively.
On Wednesday, Senate Majority Leader Mitch McConnell suggested that Ginsburg, a leading member of the high court’s liberal bloc, would have much more difficulty surviving Democratic scrutiny if President Trump had appointed her.
“Democrats would filibuster Ruth Bader Ginsburg if President Trump nominated her,” McConnell said on the Senate floor Wednesday.
While scores of Clinton’s nominees for federal judgeships were blockaded, the drama surrounding Supreme Court confirmation fights returned when Republican presidents regained power.
The Bush years
Democrats’ filibuster of President George W. Bush’s judicial appointees in the early 2000s perpetuated the partisan bickering that sent Senate battles over judicial nominees hurtling toward a fight over the “nuclear option.”
Senate Democrats led by Kennedy, who pioneered the “borking” technique, successfully filibustered Miguel Estrada’s bid to be the first Hispanic on the D.C. Court of Appeals.
After the Bush administration withdrew Harriet Miers’ nomination to fill a Supreme Court vacancy under pressure from its right flank, Samuel Alito’s 2005 nomination came under the threat of a potential filibuster that could have undone his nomination.
To prevent additional obstruction of judicial nominees by Senate Democrats, a “Gang of 14” senators — seven Democrats and seven Republicans — formed to allow Bush nominees for appellate court judgeships to proceed. When the Senate began considering Alito’s nomination, the Gang of 14 similarly mobilized to help stop Democrats’ attempts to filibuster Alito’s nomination.
Alito received an up-or-down vote and was confirmed by a 58-42 vote before the full Senate. The “nuclear option” was averted and the filibuster of judicial nominations lived to die another day.
The Obama years
Then-Senate Majority Leader Harry Reid nuked the filibuster of lower court judicial nominations in 2013 in response to Republican opposition.
The last straw appeared to come when Republicans decided to block three of President Obama’s nominees to the D.C. Circuit Court that would have tipped the balance of that federal appellate court toward Obama. The D.C. Circuit is perhaps the most powerful court outside of the Supreme Court for federal rules and regulations guiding government agencies.
Reid then changed Senate rules to lower the vote threshold required to confirm lower court nominees to 51 votes, but did not change the rules regarding Supreme Court nominations.
Two of Obama’s high court picks, Justices Elena Kagan and Sonia Sotomayor, were confirmed without much drama during his first term. But when Scalia died in 2016 and Obama picked Judge Merrick Garland as his replacement during the middle of hotly contested presidential primaries, Senate Republicans advised the president that they would not hold any hearing or vote on Garland’s nomination. Instead, Republicans vowed to wait until the 2016 election concluded.
En route to winning the 2016 presidential election, Trump publicly released lists of potential Supreme Court picks he would choose from to replace Scalia as part of an effort to solidify his bond with skeptical conservative voters. When Trump emerged victorious in November 2016, Garland’s nomination was all but dead.
The Gorsuch fight
Trump’s pick to replace Scalia was met with immediate opposition from liberals and others in the Democratic base who question the president’s legitimacy or are angered by Trump’s rise to power.
Democrats threatened to filibuster Trump’s nominee from the get-go, citing Republicans treatment of Garland as sufficient reasoning. The Democratic senators up for re-election next fall in states that Trump won in November 2016 were targeted by Gorsuch’s allies and Republicans hoping to prevent a filibuster.
Shortly before the Senate Judiciary Committee voted on Gorsuch’s nomination on Monday, more than 40 Democrats publicly stated their intention to vote against cloture, meaning they would filibuster Gorsuch. McConnell is now expected to deploy the same nuclear option Reid used on lower court nominations to force an up-or-down vote on Gorsuch’s bid, with the nominee needing only 51 votes to be confirmed.
Republicans have long expressed their desire for the full Senate to vote on Gorsuch’s nomination on Friday.
While the move will give the Republicans a victory this time, it promises to hurt whichever party is in the minority next time.
