Democrats' Double Standard for High Court Nominees
Antonin Scalia was nominated for the U.S. Supreme Court by Ronald Reagan on June 17, 1986, and confirmed by the Senate three months later on a vote of 98-0. That approval was unanimous because Barack Obama, Hillary Clinton, and Bernie Sanders hadn’t yet arrived in the Senate—and because Joe Biden wore himself out fighting Reagan’s elevation of William Rehnquist to chief justice.
President Obama, the youngest of the four Democrats, was still a Chicago community organizer who hadn’t enrolled in law school when Scalia was appointed to the court. Mrs. Clinton was in Little Rock, doing triple duty as a mom, corporate attorney, and first lady of Arkansas. Bernie Sanders was the socialist mayor of Burlington, Vt., hosting a public-access TV program, “Bernie Speaks with the Community.”
Today, that quartet—the incumbent president and vice president and the two candidates vying for their party’s 2016 presidential nomination—are the face of the Democratic Party. When it comes to the Supreme Court, however, they are two-faced. Perhaps a better way of putting it is that these Democrats have demonstrated that they have two standards when it comes to judicial appointments: one for themselves, another for Republicans.
For a senator, that’s not unusual. Republicans have been known to practice situational ethics. For a senator who wants to be president, it’s a potential pitfall. In other words, if Senate Republicans apply the standards for Scalia’s replacement used by Sens. Obama, Biden, Clinton, and Sanders, the Supreme Court is going to have only eight members for a while.
The seeds of this impasse were planted in 1981 when President Reagan surprised his own staff when his first high court vacancy arose weeks after his inauguration. During the 1980 campaign, he’d promised to name a woman to “one of the first Supreme Court vacancies in my administration.” Taking him at his word, Reagan’s legal affairs team included the names of 12 women lawyers among the 20 prospective names on their list.
Reagan never considered the men, and Sandra Day O’Connor was chosen and unanimously confirmed. The Senate’s most conservative Republicans ignored grousing from the National Right to Life Committee and the Moral Majority. (Jerry Falwell said all “good Christians” should view the appointment with concern.) O’Connor’s Arizona homeboy, Barry Goldwater, growled, “Every good Christian ought to kick Falwell right in the ass.” And that was the end of it.
Or maybe, it was the beginning of the mess we have today. When Warren Burger stepped down as chief justice in Reagan’s second term, Reagan proposed elevating Bill Rehnquist, another Arizonan, and the court’s most conservative member, as chief while simultaneously naming the 50-year-old Scalia to the vacancy.
Obsessed then, as now, with identity politics, Democrats shied away from challenging the first Italian-American appointee in court history. But led by Sen. Ted Kennedy, they went after Rehnquist in a bruising confirmation process in which they stopped just short of tarring Rehnquist as a racist. Although the effort to derail Rehnquist was doomed—the man was already on the court—31 Democrats and two liberal Republicans voted against it. Except for a Southern Republican nominated by Herbert Hoover and defeated by two votes, it was the strongest opposition to a Supreme Court nominee in the 20th century.
This was the beginning of the tribal warfare over the court that erupted the following year when Ted Kennedy led the Democrats in a fierce campaign to block Reagan’s third appointee, Robert Bork.
Within hours of the White House announcement Kennedy issued a statement infamous for its intemperance. “Robert Bork's America,” he said, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government …”
Democrats ultimately defeated Bork and derailed Reagan’s replacement, Douglas Ginsburg, and Reagan finally settled on Anthony Kennedy. When he left office, the star of the “Reagan Revolution” had appointed two moderates and a conservative to the high court. Movement conservatives hoped a “revolution” would produce a more dramatic result, but bigger problems came under Reagan’s successor.
George H.W. Bush appointed two justices, David Souter and Clarence Thomas. Souter turned out to be liberal. The narrowly confirmed Thomas proved a reliable conservative vote, but the attacks on him were so nasty and personal that his reputation never fully recovered. Neither has the process.
In those years, Alan Simpson, a prominent Senate Judiciary Committee Republican, warned that the Democrats’ scorched earth tactics would “jade and gall us for years to come.” The eventual upshot, he predicted, would be would be a nominee Simpson dubbed Jerome P. Sturdley, whom he described as a “faceless, witless, and terminally bland soul.”
Sturdley, Simpson’s imaginary lawyer, had written little that was “thoughtful, challenging, or provocative,” and would reveal nothing about his true views on constitutional law. It can be argued that Souter, who actually hid his views, and Thomas, who claimed to have never discussed Roe v. Wade, were the first two Sturdleys. There have been others. Modern presidents don’t try to get an Earl Warren or Louis Brandeis. Today’s model is the young Ivy League ideologue with little practical experience who’s been toiling on the appellate bench issuing blandly partisan opinions.
The last four appointees, two by George W. Bush and two by Barack Obama, fit this model: John Roberts and Samuel Alito; Sonia Sotomayor and Elena Kagan. All four were confirmed comfortably, but a pattern has emerged. In each of those cases, significant numbers of opposition party senators voted against the nominee just because they differed with them politically.
Among those who voted against Roberts and Alito were Obama and Clinton. They tried to filibuster Alito. Sanders wasn’t in the Senate yet, but he was running for his current seat during the Alito confirmation fight, and he opposed it. Joe Biden? He voted against Rehnquist, Bork, Thomas, Roberts, and Alito—and said publicly he deeply regretted voting for Scalia.
In 2005, when Alito was nominated, Obama not only supported a filibuster designed to stop it, but slimed the nominee as “somebody who is contrary to core American values, not just liberal values.” Even at the time, these comments seemed particularly tin-eared, coming from someone who hoped to be making such appointments in the future.
Obama’s press secretary last week issued tepid “regrets” for the attempted filibuster, but this is the very definition of seeking cheap grace. Recognizing that trap, Hillary Clinton didn’t go there. She’s sticking by her opposition to Alito and Roberts, asserting in Thursday’s MSNBC town hall that she didn’t believe “their judicial philosophy and approach was one that would be the best for the country.”
Repeating a White House talking point, Clinton added that “the process” worked—and that both nominees were in the end confirmed. That’s very different, she added, from Republicans just announcing they don’t want Obama to nominate anyone.
On one level, she’s right. But by that logic, actually filling Scalia’s vacancy necessitates Obama nominating someone whose “judicial philosophy and approach” is one that a majority of Senate Republicans would deem “best for the country.” So a bar has been set: Call it the Clinton standard. Does anyone believe Obama will meet it?