Advise and Contend

By Nick Houtman

“…he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States … ”

— Constitution of the United States, Article II, Section 2

Last September, hearings on President Trump’s Supreme Court nominee exploded in citizen protest and bitter partisan debate among politicians. On one day during a Senate Judiciary Committee hearing, police removed more than 70 protestors who were demanding that senators reject the nomination of Brett Kavanaugh as associate justice. Democrats repeatedly challenged the nominee while Republicans defended him and criticized their colleagues across the aisle for using shameful political tactics.

Elsewhere, in senators’ offices and cities across the country, protestors staged sit-ins and took to the streets in support of women who alleged that Kavanaugh had sexually assaulted them as a teenager. Kavanaugh denied the allegations, and with Republicans in control of the Senate, the nomination was approved on nearly a party-line vote.

Rarely have proceedings been so contentious. According to some observers, like former White House counsel Bob Bauer, the stage for bitter conflict had been set two years earlier when Republicans refused to hold a hearing on Judge Merrick Garland, President Obama’s nominee to replace Supreme Court Justice Antonin Scalia.

John Jay was the first Chief Justice of the U.S. Supreme Court. (Portrait: Gilbert Stuart)

History of Nominations and Confirmations

Until the 1960s, the Senate often gave its approval by a simple voice vote. That last happened in 1965 when President Johnson nominated Abe Fortas to replace Arthur Goldberg as an associate justice. Despite mounting national turmoil resulting from riots, the war in Vietnam and Johnson’s Great Society initiative, it took only two weeks for senators to conduct hearings and to approve Fortas unanimously by shouting “aye!”

Three years later, the tables had turned. When Johnson nominated Fortas to replace Earl Warren as Chief Justice, conservatives objected to the nominee’s close ties with the president, challenged Fortas on ethical grounds and mounted a filibuster by which senators can make long speeches to control debate, effectively blocking proceedings. Although the Democrats controlled both the presidency and the Senate, Fortas eventually withdrew, becoming the first unsuccessful nomination to the post since 1795. His tenure on the court lasted only one year more.

In 1970, President Richard Nixon’s nomination of Harry Blackmun to replace Fortas sailed through the Senate 94-0 (two of Nixon’s previous nominees had been rejected). Blackmun later wrote the majority opinion in the groundbreaking abortion case, Roe v. Wade.

Rorie Solberg, an associate professor of political science with a research interest in judicial politics at Oregon State University, counts Fortas as an early milestone in the march toward the persistent conflict that has marked the confirmation process for the last two decades. In the 1980s and 1990s, some nominees faced significant opposition and one, Robert Bork, was rejected. Nevertheless, successful nominees continued to receive overwhelming approval. No senators voted against three of President Ronald Reagan’s nominees: Sandra Day O’Connor, Antonin Scalia and Anthony Kennedy.

In 1991, President George H. W. Bush’s nomination of Clarence Thomas generated allegations of sexual misconduct by Thomas from University of Oklahoma law professor Anita Hill. Foreshadowing the Kavanaugh proceedings, the charges were the subject of contentious hearings. Thomas was narrowly approved 52-48.

Despite determined Republican opposition to President Bill Clinton’s administration, his two Supreme Court nominees, Ruth Bader Ginsberg and Stephen Breyer, received strong Senate support. It wasn’t until 2005, Solberg says, that presidential nominations to the highest court regularly faced daunting political hurdles.

Underlying Factors

The increasingly hostile political divide and recent changes in process (no filibuster for judicial nominations) combine with one party’s control of the presidency and the Senate, Solberg explains, to make hearings ironically more contentious and nominees more assured of approval. In her research, she has focused on diversity in the judiciary and how the news media reports on nominees and confirmation proceedings. Such continued wrangling between the parties over nominees is likely to continue, she says, “until it breaks the system.”

Solberg was interested in the law as an undergraduate and wanted to become a lawyer. However, she realized that what intrigued her were the dynamics of Supreme Court decision-making rather than the mechanics of applying the law to a particular case. As a graduate student at The Ohio State University, she learned how to use statistics to analyze past court cases and the influences on the justices. In one memorable project investigating the influence of amicus curiae (friend of the court) briefs, Solberg found evidence reaching back to the 1800s in docket books written in longhand with a quill pen.

In a 2008 paper co-authored with Kevin Scott of the Congressional Research Service and published in the Southern Illinois University Law Journal, Solberg cautioned scholars of the courts not to assume that presidents can remake the federal judiciary — from the U.S. Supreme Court to federal judgeships in all 50 states. They noted: The composition of the Senate can change; Judges have lifetime appointments and can retire at will; Senate norms give deference to the opinions of senators representing states in which vacancies exist.

However, she says, a lot has changed in the last 10 years. Most notably, Democrats eliminated the filibuster for executive branch appointments and lower court judges in 2013, and Republicans completed the process in 2017 by canceling the filibuster for Supreme Court nominees. Removing the filibuster has been called the “nuclear option” because it allows the party in control to ignore views from the minority.

We’re now waking up to the situation, says Solberg, where the lack of process and use of obstruction and delay tactics on both sides has been happening in the lower courts since the Clinton administration. She adds, “It’s to the point where it’s really plaguing the district courts and the courts of appeals, and now we’re seeing it erupt at the Supreme Court level.”

President-elect Donald Trump walks to take his seat for the inaugural swearing-in ceremony at the U.S. Capitol in Washington, D.C. (Photo: Shealah Craighead)

Underlying this contention, says Solberg’s colleague Eric Waltenburg, professor at Purdue University, is the recognition that courts play an important role in policy development. “It’s always been the case,” he says, “that who is on the court has a tremendous impact on the direction that public policy will take in the United States.” Solberg and Waltenburg have collaborated on an analysis of news media coverage of Supreme Court nomination hearings and continue to review the Gorsuch and Kavanaugh proceedings.

Also, says Waltenburg, since judges receive lifetime appointments, their impact on policy can last for decades. With that in mind, presidents have been nominating younger judges whose tenure can extend well past the length of a presidential administration.

Legacy, Trends, Conflict

As delays in the nomination process have seen retirements leave judgeships vacant, the judiciary has come to rely more heavily on retired judges who work part time. So-called “senior status judges” can retire once they reach age 65 and have at least 15 years of service.

“You sort of give your seat back, and the president can fill it,” says Solberg, “but you’re still doing work. You still hear cases, you still have clerks, and you’re still getting paid, but you’re working quarter or halftime. If those people were to decide to just stop, the judiciary would be in a much bigger crisis than it already is.”

In addition to nine Supreme Court judges, there are another 861 federal judgeships in the district and appeals courts. When President Trump took office in 2016, adds Solberg, there were more than 100 vacancies, including one on the Supreme Court, a result of delays in confirming President Obama’s nominees. Those vacancies plus the normal cycle of retirements created an opportunity for Trump to leave a more significant legacy in the federal courts than many of his predecessors. “Trump may have more lower court judges appointed than any president in recent history,” she says.

Moreover, Solberg’s research has shown, those appointments are resulting in a judiciary that is becoming whiter and more male. She noted in an op-ed published by The Conversation that Trump is reversing a trend toward increasing gender and cultural diversity that began with the Clinton administration.

The pace of approvals has also picked up with hearings expedited to move nominees through the process. Last fall, a hearing on nominees to the lower courts was attended by only two members of the Senate Judiciary Committee. There were more nominees present than there were senators in the room.

Since the party that controls the presidency and the Senate is getting what it wants, says Solberg, there’s currently little incentive to change the process. Nevertheless, interest groups are offering proposals, including term limits and educational and age-based criteria for nominees.

The Constitution provides no minimum qualifications for judicial nominees. Law schools did not exist when the document was written, and lawyers learned through apprenticeship. It wasn’t until 1955, when Roosevelt appointee Robert Jackson left the bench, that every member of the Supreme Court had a law school education.

It would take a Constitutional amendment to establish qualifications for the federal bench and a dramatic shift in political winds to calm the waters of judicial nominations. Conflict is likely to affect nominations to the federal judiciary for some time to come. “I don’t know,” says Solberg, “if there’s a way to put that genie back in the bottle.”