As we prepare for Senate hearings on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, you might want to know that the holding of such hearings was not the original intention of the Framers of the Constitution.
How do I know that? I’m a history nerd (as well as a skeptic on the whole “original intentions” gag, at least if we take those words to literally mean the “original intentions” of the Framers, who had no knowable intentions on a great many 21st century matters).
Back when the first members of the Supreme Court were appointed (at a time when the Framers of the Constitution were still around and some of them were in the Senate, and the former presiding officer of the Constitutional Convention was president of the United States, so perhaps they were the experts on original intention), there were no hearings held on the nominations of the original Supreme Court justices.
Maybe you’re thinking there was just too much to do, getting the new government up and running to spend time on hearings on Supreme Court nominations. If so, nice try, but no cigar.
First such hearings: 1916
In fact (big history nerd fact coming up) no confirmation hearings were held by the Senate on any Supreme Court nominees until 1916, when President Woodrow Wilson nominated Louis Brandeis, one of the big legal geniuses of all time, to serve on the high court.
Some say the fact that Brandeis was the first Jewish nominee had something to do with it. Brandeis wasn’t just Jewish, he was a huge leader of Zionism in America. He was also notoriously progressive. But, in any event, nominee Brandeis didn’t even appear at the hearings that the Senate held to consider his Supreme nomination. Other witnesses were questioned about Brandeis, but not the nominee. Brandeis was confirmed.
No, the first Supreme nominee ever to appear at a hearing on his nomination was Felix Frankfurter (he was the second Jewish nominee, and was also considered controversial because he had publicly argued for a pardon of the famous anarchists Sacco and Vanzetti).
Now we’re up to 1939, which means that for about two-thirds of constitutional history, no Supreme nominee answered congressional questions about his constitutional thinking.
First to show up
In 1939, Frankfurter, then a Harvard Law professor, did set the precedent of showing up for a Senate confirmation hearing on his own nomination. But in response to most questions he replied only that he had an extensive public record and he would stand on that record rather than reply to specific questions that the Judiciary Committee members wanted to ask. The committee, and ultimately the Senate, confirmed him anyway, on a voice vote.
Oh, yeah. A voice vote. In fact, up until the early 1960s (in other words for the first three-fourths of constitutional history) the great majority of Supreme Court nominees were confirmed on voice votes, indicating that there was not enough controversy or opposition to bother taking a recorded aye-or-nay, senator-by-senator vote.
The turning point may have been the case of Thurgood Marshall, the first black nominee, chosen by Lyndon Johnson in 1967. There was significant opposition to Marshall. In addition to his race, Marshall was prominent as a civil rights lawyer challenging racial segregation in landmark cases like Brown v. the School Board (1954). But Marshall was so clearly qualified, and LBJ was so good at Senate mechanics, that, despite what controversy may have hung in the air, Marshall ended up being confirmed by an overwhelming 69-11 margin, on a recorded (not a voice) vote.
No more voice-vote approvals
Since then, no Supreme Court nominee has ever been approved on a voice vote. You could say the end of voice votes signified the start of the new era of partisan battles over Supreme Court nominees, but that too would be an oversimplification.
Two of Richard Nixon’s nominees, Clement Haynsworth and G. Harrold Carswell, were rejected, mostly on civil rights grounds, although neither vote broke down neatly along partisan lines. But three other Nixon Supreme Court nominees were approved by overwhelming bipartisan majorities.
Ronald Regan had three nominees approved by unanimous votes, but two others who faced significant opposition, and one of those, Judge Robert Bork, was rejected. Still, Bork’s replacement, the just-now-retiring Anthony Kennedy, was confirmed 97-0, in 1988.
Try to imagine, in today’s climate, if the Kavanaugh nomination happens to fail, that the current incumbent would find a second nominee who would be approved unanimously. I, for one, can’t imagine it.
The new normal
The new normal, in which most Supreme Court nominees get overwhelming support from the president’s party but significant opposition from the other party, seemed to take real shape during the George W. Bush administration.
Bush’s successor, Barack Obama, got two nominees confirmed, and both of them got some Republican votes, but the majority of Senate Republicans voted nay (31 nay votes against Sonia Sotomayor, 37 against Elena Kagan). We were well on our way to the new normal.
Then, in Obama’s last year, when the sudden death of Justice Antonin Scalia created a vacancy and Obama nominated a highly qualified replacement, Merrick Garland, Republican Senate leader Mitch McConnell, claiming a highly dubious tradition of refusing to consider appointments in an election year, prevented Garland from even getting a committee hearing. If the old less-partisan normal wasn’t already toast, that chapter toasted it.
We can’t say for sure what the new new normal will be, but it is clearly a lot closer to party-line voting than ever before.
Forty-five out of 48 Senate Democrats voted against the first Trump appointee, Neil Gorsuch, and the three Dems who voted to confirm him (Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana) all represent red states, which gives them special reasons to go along with the Supreme Court nominees of Republican presidents. But even without the three Red State Democrats, Gorsuch had enough votes just from Republicans to confirm him.
The likelihood this time
Most Democrats will almost certainly vote against Kavanaugh (again possibly without Heitkamp, Manchin and Donnelly). Almost all Republicans (with the possible exception of the two most moderate Republicans Susan Collins of Maine and Lisa Murkowski of Alaska) will vote to confirm him. In other words, there is now a party line on all such nominations and in the current case at least 95 senators will vote their party line. There’s nothing like that in the older history, but it represents well the new normal.
From here, it’s easy to imagine a system in which any president whose party doesn’t also control 50 Senate seats will be unable to get any justices confirmed. Or, one can imagine, the appointment would have to be negotiated in advance between the president of one party and the Senate majority of the other. Or perhaps appointments will have to be packaged in pairs, so each party gets one.
I’m just making up these possibilities. But the idea that if the president nominates a qualified lawyer with no scandalous background, he or she will be confirmed by an overwhelming bipartisan vote (or, ha-ha, a voice vote) are kinda over. By the way, the Constitution does not specify that you have to have a law degree to serve on the Supreme Court.