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.


Ghosts of hearings past

C-SPAN is hardly known for its dramatic programming, but viewers this week were treated with coverage of the confirmation hearings of Supreme Court nominee Neil Gorsuch.

By most objective accounts, Gorsuch sailed through the hearings with an affable and unflappable demeanor to complement his considerable and demonstrable legal qualifications.

He’s now virtually a cinch to be given a SCOTUS robe and seat, and American jurisprudence will be the better for it—despite wailing to the contrary that almost literally was plucked from the “sky is falling” worries Democrats expressed 30 years ago at the Antonin Scalia hearings.

In a play off the old advertising campaign “Is it live, or is it Memorex?” which showed an Ella Fitzgerald high note shattering a wine glass, guess whether the following statement was uttered this week or in 1986: “There have been at least some reports that [overturning Roe v. Wade] was one of the considerations in your nomination.”

If your gut told you that the more things change, the more they stay the same, congratulations! That sentence is straight from the Scalia hearing transcripts.

Here’s the exchange that preceded it, led by Sen. Edward Kennedy, who barely muttered a greeting before tossing his first mortar: “if you were confirmed, do you expect to overrule the Roe v. Wade?”

A clearly taken aback Scalia replied, “Excuse me?”

The Massachusetts senator rephrased slightly. “Do you expect to overrule the Roe v. Wade Supreme Court Decision if you are confirmed?” he asked.

Like most nominees before and since, Scalia explained it would be improper to answer that question, and elaborated. “Let us assume that I have people before me arguing to do it or not to do it,” he said. “I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that.

“I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter,” Scalia said.

It is clearly unwise to prejudge publicly any case that might ultimately come before the court, especially one so contentiously debated in legal contexts. But special interests consider wisdom and common sense mortal enemies if either threatens their agenda.

So lobby servant Kennedy pressed on. “Do you believe in [the concept of stare decisis]? What is it going to take to overrule an existing Supreme Court decision?” he asked.

“As you know, Senator,” Scalia answered, “they are sometimes overruled.”

“I am interested in your view,” Kennedy continued.

“My view is that they are sometimes overruled,” Scalia said, and then added, “I will not say I will never overrule prior Supreme Court precedent.”

Thirty years hence, the nominee selected to succeed Scalia faced the same opposition from the same special interest, which hurled the same mud hoping to smear another imminently qualified jurist. But Gorsuch was definitive and defiant about any expressed White House litmus test regarding abortion tainting his integrity as a nominee.

Had he been asked by President Donald Trump to overturn Roe v. Wade, Gorsuch said, “I would have walked out the door.”

Sen. Kennedy is long gone, but some faces still have recurring roles in this three-decades-later sequel.

Sen. Patrick Leahy posited this contemplative query to Scalia in 1986: “Does the word ‘justice’ have content to you?”

In 2017, here’s one of his probing questions to Gorsuch: “Would the president have the authority to ban all Jews from America?”

Then-Sen. Joe Biden was also in the judiciary committee hearings for Scalia, asking about whether the nominee subscribed to the view of the Constitution as a “living” document.

“What I think,” Scalia responded, “is that the Constitution is obviously not meant to be evolvable so easily that in effect a court of nine judges can treat it as though it is a bring-along-with-me statute and fill it up with whatever content the current times seem to require.”

And yet judicial activism produces that precise result, which is both undemocratic and divisive. It’s why partisans can praise Roe v. Wade as “settled law” in one breath and deny Citizens United as such in the next.

Sen. Diane Feinstein, in trying to pry an abortion-rights answer out of Gorsuch, went so far as to worry aloud that the “law” as it exists “could be struck down with one decision.” Her fears exist because that “law” was foisted on the nation with one decision, rather than legislated through the democratic process or added to the Constitution in the amendment process.

Special interests that want to live by the gavel can also die by the gavel. After all these decades, Roe v. Wade‘s legal doctrine remains unsettled for the very reason that it was poorly adjudicated to begin with.

As Scalia often opined, justices are poorly equipped to be lawmakers. We are fortunate that lawmakers acting as mouthpieces for special interests in confirmation hearings are equally unfit to be Supreme Court justices.