SCOTUS scores

The present moment is ripe to recall the Prize for Civility in Public Life that Allegheny College awards annually, and especially the latest recipients from 2017.

Allegheny began awarding the prize in 2012 as a quest to reverse “the rise of incivility in our democracy,” as college president James H. Mullen wrote at the time in naming columnists and NewsHour hosts David Brooks and Mark Shields as inaugural prizewinners.

The 2017 honorees for the prize were none other than Ruth Bader Ginsburg and (posthumously) Antonin Scalia.

The two U.S. Supreme Court justices were known to be fast friends, despite being political foes. In addition to sharing similar personal interests in travel, opera and wine, Ginsburg and Scalia shared something else: high confirmation vote scores.

Nominated by President Ronald Reagan in 1986, Scalia was approved in the Senate on a 98-0 vote. Nominated by President Bill Clinton seven years later in 1993, Ginsburg won her confirmation in a 96-3 vote (even after flat-out refusing to answer a number of questions in her hearings).

During that same short period Clarence Thomas eked out a 52-48 senate confirmation score, and Robert Bork’s nomination was rejected 42-58.

The character assassination of Bork, widely regarded as one of the most brilliant scholars ever nominated, was masterminded by senior Democratic senate leaders and special interest groups. If memory fails you, go back and read the “Bork’s America” scare-tactic speech given (with the straightest of faces) by Sen. Ted Kennedy just one hour after Bork’s nomination announcement.

The same Democrats who had voted “yea” for Scalia in 1986 just one year later bashed and dashed Bork’s nomination in the most uncivil attack in recent memory at the time.

Before Bork, here are the voting scores for the SCOTUS nominees starting in 1970: 94-0 (Blackmun), 89-1 (Powell), 68-26 (Rehnquist), 98-0 (Stevens), 99-0 (O’Connor), and 98-0 (Scalia).

Incredibly, with the single exception of Rehnquist, in 17 years prior only one senator cast a “nay” vote on a Supreme Court associate justice nomination.

The Bork lynching by Democrats—they had warned of a combative posture, but Reagan rightly characterized the Senate leadership’s collusion with leading special interest groups as a “lynch mob”—negatively altered the civility of such proceedings.

Prior to 1970, most SCOTUS nominees were confirmed by simple voice vote. Both of President John F. Kennedy’s nominees, three of President Dwight Eisenhower’s, two of President Harry Truman’s and seven of President Franklin D. Roosevelt’s were all confirmed that way, so no record of scoring exists for those.

The last SCOTUS justice to receive a unanimous confirmation vote is the one now retiring. Anthony Kennedy was confirmed 97-0 in 1987.

Since Ginsburg garnered her 96 “yea” confirmation votes 25 years ago this August, here are the SCOTUS scores: 87-9 (Breyer), 78-22 (Roberts), 58-42 (Alito), 68-31 (Sotomayor), 63-37 (Kagan), 54-45 (Gorsuch).

The paradigm shift that has rendered 90-something confirmation scores a thing of the past isn’t an accident. It’s a product of a distinctive and collective special interest strategic initiative, carried out by the political party prone to pander to those interests.

Fringe groups seeking radical change began to realize that while successful legislation often takes large sums of time and money, the Supreme Court can change the law for 320 million Americans in a single session, sometimes by a single vote. It has proven much easier at times to lobby and convince five SCOTUS justices instead of the majority of nearly 500 federal lawmakers.

That dynamic change, naturally, unduly politicizes the judicial nomination process, creating both contention and (as desperation born of a “live by the gavel, die by the gavel” potential pendulum swing emerges) increased incivility.

With the announcement of the next SCOTUS nominee just days away, liberal groups are already planning tens of millions of dollars in ad campaigns to fan flames of unfounded fears. Political pressure affects senators, no doubt. On both sides of the aisle, for those facing less than certain re-election this confirmation vote will loom large as a career consideration.

It would be better if the political discussion could rise above the next nominee to the more substantive issue of the shaky footing that law-by-SCOTUS-decree creates. That argument—convenience of court rulings versus consensus of legislation—has been a long time coming, and though painful, will in the end be good medicine for both the Democratic Party and the nation as a whole.

There wouldn’t be frenzied worries over Roe v. Wade had the abortion lobby simply persevered for statutory (or even constitutional amendment) success. At the time, and still today, that ruling was widely criticized as lacking sufficient underpinning in law.

But hey, with a friendly court, it worked.

The fact that special interests are overwrought now about a possibly unfriendly court signifies a colossal problem–not with those groups, but with the modern “law by judicial decree” process. Self-government must rely on elected representatives in Congress and the 50 state legislatures. The only way that works is for the Supreme Court to exercise self-restraint.

Justices are ill-equipped to make law (they’re the furthest thing from representative), which isn’t their job anyway. We need nominees who respect that above all. Hopefully that’s the kind we’ll get next.

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