President Trump nominated his justice quickly; Republican senators need to act just as fast. If history tells us anything, it’s that they may not get another chance, even if Trump is re-elected in 2020.
Clarence Thomas is now the only Supreme Court justice nominated by a president of one party and confirmed (narrowly) by a Senate controlled by the other party. The rest were appointed and confirmed in the brief periods when one party controlled both the White House and the Senate.
[Related: Americans at odds over whether Senate should confirm Kavanaugh: Poll]
Former President Barack Obama got Justice Elena Kagan and Justice Sonia Sotomayor through in the first half of his first term, before the Republican midterm “shellacking” of 2010. Former President George W. Bush got Justice John Roberts and Justice Samuel Alito confirmed just before the Democrats retook the Senate in 2006. Former President Bill Clinton’s two appointments, Justice Ruth Bader Ginsburg and Justice Stephen Breyer, were confirmed in the first half of his first term, before the Republicans took control of Congress for the first time in 40 years.
With the parties having become so polarized, Republicans’ silent refusal to even consider Obama’s nominee, Judge Merrick Garland, may become the new normal. Indeed, retired Justice Anthony Kennedy got his seat only because Senate Democrats launched an unprecedented character assassination of foremr President Ronald Reagan’s initial nominee, Robert Bork.
“Borking,” as this technique came to be known, is one used exclusively by Democrats. Only Republican nominees get “borked,” whereas Republicans have never borked Democratic nominees. Before Garland, they never had the chance. Garland’s nomination marked the first time that a Democratic nominee faced a Republican Senate since former President Grover Cleveland named Rufus Peckham in 1895, who was easily confirmed. (Ironically, a Democratic Senate had rejected Peckham’s brother, Wheeler, a year earlier, due to a feud between Cleveland and the New York Democratic Party. A lot less was at stake in Supreme Court confirmations then.)
In fact, Republicans are the only ones to have borked one of their own. In 1932, a Republican Senate rejected, by one vote, the hapless Herbert Hoover nominee, John J. Parker. Not unlike today, the party was divided between progressives and conservatives. Today, almost all analysts agree that Parker deserved to be confirmed. He was borked avant la lettre. Republican nominees, by contrast, have had to run the gauntlet of a Democratic Senate 13 times in the 20th century, and three of them were rejected.
Of course, this is not to say that Republicans can’t shut down a nomination when given the opportunity. The silent treatment from Senate Majority Leader Mitch McConnell, R-Ky., towards Garland might be seen as a kinder, gentler, Republican version of “borking.” It’s an old, but not unprecedented approach: In the 1840s, a hostile Whig Senate ignored or rejected seven consecutive nominees by President John Tyler, a WINO (Whig in Name Only), and three by Whig President Millard Fillmore 10 years later. Very few of these nominees got recorded votes. (The Whig party failed at many things, and in nothing more than filling the Supreme Court.)
This brings us to the fundamental reason for today’s rush to fill the Kennedy seat: the inability of the parties to control both the presidency and Congress for more than one election cycle. Obama and the Democrats did it for one (2009-11), Bush and the Republicans for two (2003-07), Clinton and the Democrats for one (1993-95). Jimmy Carter had a Democratic Congress for two cycles (1977-81), but no vacancies to fill.
This constant turnover wasn’t always the norm, however. Before the advent of regularly “divided government,” the parties had longer runs. Four cycles for the Democrats in the 1960s, seven for the New Deal Democrats (1933-47), five for the Republicans in the 1920s, and seven twice-over for the old Republicans (1861-75 and 1897-1911). It is true that parties have had the presidency and the Senate alone more often, as the Senate is much harder to flip because only one-third of its members are up for election each cycle.
American political parties are not what the institutions of discipline and organization they used to be. Trump was hardly a Republican at all and won the party’s nomination. Bernie Sanders was not a Democrat at all and nearly won that party’s nomination. Indeed, he was foiled precisely because the Democratic party is a stronger party, less open to populist movements — on this score, at least, more conservative than its Republican counterpart.
Along with a more volatile electorate, weaker and more polarized parties, we have a Supreme Court that is much more powerful than before the era of divided government. And that, above all, is the reason that Republican senators must make sure that this opportunity is not missed.
Paul Moreno is the William and Berniece Grewcock Chair in constitutional history and dean of social sciences at Hillsdale College.
