When President Joe Biden selects a nominee for the Supreme Court, he’ll be returning to a process he grew deeply familiar with during a nearly two-decade run leading Democrats on the Senate Judiciary Committee.
As committee chairman from 1987 to 1995, and ranking member from 1981 to 1987 and again from 1995 to 1997, Biden presided over some of the most notorious confirmation hearings of the era, a fate he’ll hope to avoid when selecting what he’s promised will be the court’s first black woman.
WHITE HOUSE SAYS CRUZ CONTRADICTS HIMSELF WITH CRITICISM OF COMING BIDEN NOMINEE
“The question, and it’s almost a rhetorical one, is does Biden realize things are different now?” said Brookings Institution visiting fellow Russell Wheeler. “When he chaired the committee, most confirmations were going through on unanimous consent motions. … Confirming judges was almost a ministerial act.”
While many of the nominations Biden was involved in during his time on the committee were indeed smooth — Antonin Scalia was confirmed 98-0, Ruth Bader Ginsburg 96-3 — the beginnings of today’s partisan battles did emerge during this era.
In 1987, the same year he first ran for president, Biden oversaw the bruising confirmation hearings of Robert Bork. Though Biden had said he would support Bork before he was nominated, when the nomination became official, Biden came out against it, leading to contentious hearings. Ultimately, Bork was shot down 58-42, and his name has become synonymous with political character attacks.
Four years later, Biden drew criticism from both sides during the controversial Clarence Thomas confirmation. Thomas described Biden’s convoluted questions as “beanballs,” while liberal and feminist groups came out against Biden for blocking some testimony related to Anita Hill’s accusations of sexual harassment. Thomas was confirmed by a 52-48 vote, which wouldn’t look out of place in 2022.
But it would be naive to say that Biden established political fights over Supreme Court nominees, argues Wheeler, who says party-line votes are an “almost Pavlovian” inevitability today due to hyperpartisanship.
“A lot of people are commenting that Biden seems to live in a dream world,” he said. “He seems to think there’s still camaraderie in the Senate. I just don’t know. He had [Senate Judiciary Chair Dick] Durbin and [ranking member Chuck] Grassley visit the White House, two old friends, to talk about the nomination. I just don’t know how much of that translates today.”
Regardless of what happened with Bork or Thomas, Wheeler can’t imagine a scenario where justices would still get confirmed with 90-plus votes today.
That wasn’t always the case. Justices in decades past often were confirmed on unanimous voice votes, some even confirmed just days after being nominated. Yet the most recent justice, Amy Coney Barrett, attracted not a single Democratic supporter, the first time a nominee failed to generate any opposition party support since 1869.
Ultimately, Biden’s considerable experience on the Judiciary Committee during the ’80s and ’90s, during which eight justices were confirmed, may not matter much with his selection.
Given today’s polarized politics, the president’s nominee may face a drawn-out drama-filled confirmation no matter what he does. Ron Bonjean, a Republican strategist who advised Neil Gorsuch during his 2017 nomination, expects plenty of pushback.
“The confirmation process has turned into a political campaign where either side is trying to define the nominee,” he told NBC News. “With the toxic environment that we’re currently living in, it’s hard to see how this would be a peaceful process.”
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South Carolina Sen. Lindsey Graham has come out in support of J. Michelle Childs, a district judge from his home state, and there’s a chance that centrist Republicans like Mitt Romney, Susan Collins, or Lisa Murkowski could add a bipartisan veneer to the process. If not, a second-straight party-line vote may test the theory of whether or not a vice president can break Senate ties on judicial nominations.
