Illustrating the Growth of the Divide on Supreme Court Picks
A chart showing forty years of Senate confirmation votes for Supreme Court justices illustrates the growing divide in America. The path to today’s divisions has a complex history.
The First Fights
Back in the 1980s, Ronald Reagan, no friend of liberals, received overwhelming Democratic support for three of his nominees for the Supreme Court of the United States (SCOTUS). Not a single Democrat voted against Antonin Scalia. Nor did any vote against one of George Bush’s nominees.
And then there is Robert Bork. Republicans say that Democrats broke tradition with partisan attacks on a highly qualified nominee. Democrats point out that it was the choice of as unsuitable a candidate as Bork that went against tradition. Bork had staked out extreme positions on hot-button issues, rejecting the Civil Rights Act of 1964 and arguing that a company can force its employees to undergo sterilization to keep their jobs. He was also infamous for being the one lawyer in the Justice Department who went along with Richard Nixon’s effort to stop the Watergate investigation.
Similarly, the nomination of Clarence Thomas by George H.W. Bush in 1991 encountered fierce opposition. Clarence Thomas was the first of two current Republican-nominated Supreme Court justices accused of sexual misconduct. The American Bar Association gave him one of the lowest scores of a SCOTUS nominee, with 0 votes for “well-qualified”, 12 for “qualified” and 2 for “not qualified”. Thomas was known to be extremely conservative, which was especially galling to Democrats since he was replacing Thurgood Marshall, who had successfully argued Brown v. Board of Education, the landmark civil rights case.
A unified Democratic Party had enough votes in the Senate to defeat near-unanimous Republican support for Thomas, but over 10 Democrats voted for Thomas and so he has been on the Court to this day.
Growing Division
Despite anger at Democratic opposition to Bork and Thomas, most Republicans voted to confirm two justices nominated early in Bill Clinton’s first term.
The vote for George W. Bush’s first nominee, John Roberts, broke new ground: Democrats were evenly split. With his second nominee, Samuel Alito, strong Democratic opposition returned. Alito was the most conservative SCOTUS pick since Scalia, significantly to the right of the justice he was replacing (Reagan pick Sandra Day O’Conner), but I think it’s very unclear if it was the nomination that intensified the partisan nature of the confirmation process or the Democrats’ opposition.
Almost all the Republicans then returned the favor by voting against Barack Obama’s first two nominees.
A Rigid Divide
But the Republicans initiated the next partisan escalation over Obama’s third pick, Merrick Garland. Garland’s judicial philosophy was mixed; Democrats considered him a centrist, Republicans considered him a liberal. Senate Majority leader Mitch McConnell blocked the nominee; the senate never even had hearings on Garland, so there was no vote.
In response, nearly all Democrats voted against all three of Donald Trump’s nominees. All of them were rightist activists. Democrats considered the first to have “stolen” the seat of Obama’s nominee, and the last was confirmed during the 2020 election by Republicans who had argued against Garland’s nomination months before the 2016 election because “it was too close to the election.” The middle candidate, Brett Kavanagh, came with an unusually partisan reputation dating to his prominent role in the impeachment of Bill Clinton. He stonewalled credible claims of sexual misconduct in his youth and threatened that “what goes around comes around” in response to controversy about his appointment.
Like much else in modern American politics, Supreme Court nominations have become a topic where it is difficult for politicians to cross party lines.