The Democrats and SCOTUS: The Real Record

The muckraking, character-assassinating, ‘get-him-at-any-costs’ circus that Brett Kavanaugh’s confirmation has devolved into is, sadly, the entirely predictable latest chapter of a book that repeats itself when a Republican president attempts to seat a Supreme Court justice.

At one point during his epic, snarling, finger-pointing rant in the Senate Judiciary Committee last week Senator Lindsey Graham eyed Judge Kavanaugh and instructed him, “When you see Sotomayor and Kagan tell ‘em that Lindsey said ‘hello’, cause I voted for them!”

Indeed, the Republican senator from South Carolina did vote to confirm both Sonja Sotomayor and Elena Kagan. Among Republicans he was far from alone. When it comes to confirming justices to the Supreme Court bipartisanship exists only when the Oval Office is occupied by a Democrat, if the American people have handed the White House to a Republican -- get ready for a fight.

Here’s the nomination and confirmation votes of men and women recently seated (or rejected) on the SCOTUS, notice a pattern?

Robert Bork was nominated to the SCOTUS in 1987 by a Republican president (Reagan). The smear campaign against Bork was immediate and successful and his nomination was blocked by Senate Democrats with 97% (58 members of their 60-member caucus) voting "no".

Clarence Thomas was nominated to the SCOTUS in 1991 by a Republican president (George H.W. Bush). Thomas’ slandering with sex sleaze accusations has become the stuff of American folklore as has his blistering response to the then-Joe Biden chaired majority-Democrat Judiciary Committee. Thomas ultimately was confirmed via a narrow, partisan 52-48 vote with 46 Democrats voting "no".

Ruth Bader Ginsberg was nominated to the SCOTUS in 1993 by a Democrat president (Clinton). Then as now Ginsberg was/is the most liberal member of the court. Regardless, she was approved by the senate via a massively bipartisan 96-3 vote.

Stephen Breyer was nominated to the SCOTUS in 1994 by a Democrat president (Clinton). All Democrats voted “yes” as did most Republicans on Senate Vote 242 which confirmed Breyer. He was approved on a sweeping 87-9 bipartisan vote.

John Roberts was nominated to the SCOTUS in 2005 by a Republican president (George W. Bush.) Having been confirmed via a 78-22 vote the Roberts confirmation vote is the closest to bipartisan for any Republican nominee in decades. Still, the 22 “no” votes were all Democrats and represented half the Democrat caucus that year.

Sam Alito was nominated to the SCOTUS in 2005 by a Republican president (George W. Bush.) His confirmation was a bitter partisan fight featuring the usual talking points such as the ending of legal abortion and bringing back slavery with then-New York Senator Hillary Rodham Clinton attempting to filibuster the vote and eventually storming off the senate floor after a roll call vote to achieve cloture on the nomination. Alito was confirmed via a highly partisan 58-42 vote. 40 of the senate’s 42 Democrats voted “no.”

Sonja Sotomayor was nominated to the SCOTUS in 2009 by a Democrat president (Obama). Sotomayor, who riled conservatives by repeatedly claiming that a “wise Latina” would make better conclusions than a “white male”,  was approved via Senate Vote 262 a 68-31 bipartisan vote that saw twenty three percent of senate Republicans voting “yes.”

Elena Kagan nominated to the SCOTUS in 2010 by a Democrat president (Obama). Kagan who was arguably the least qualified nominee in modern history as she had never served a single day as a judge at any level, was approved via Senate Vote 229 a 63-37 bipartisan vote in which twelve percent of senate Republicans voted “yes.”

Neil Gorsuch was nominated to the SCOTUS in 2017 by a Republican president (Trump). So upset were Democrats by the selection that they filibustered on the Senate floor for as long as possible. Eventually Senate Vote 111 approved Gorsuch on a partisan 54-45 vote with Democrats holding ranks, as usual. Less than 10% of Senate Democrats joined Republicans in voting to affirm Justice Gorsuch, 42 of 45 voted "no".

Brett Kavanaugh was nominated to the SCOTUS in 2018 by a Republican president (Trump). Most know the rest of the story.

The pattern is easy to see and the tactics stand as proof that everything old is eventually new again. In 1987 Senator Ted Kennedy made the following public statement concerning President Reagan’s selection of Robert Bork:

“Robert Bork's America 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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy,”

Last week House Minority Leader Nancy Pelosi has this to say about President Trump’s selection of Brett Kavanaugh:

“If Judge Kavanaugh is confirmed, Roe v. Wade, affordable health care, voting rights, common-sense gun violence prevention, freedoms of LGBTQ Americans, communities of colors and immigrants are all on the chopping block, just to name a few. And if he doesn't believe in stare decisis as established law, everything is on the table. Again, voting rights, civil rights, Brown v. the Board of Education. All right?”

New team, same playbook, but history makes clear the broader point -- Republicans will vote to confirm Democrat nominees but not the other way around. For the past forty years, Senate Republicans have recognized that to the victor belong the spoils, that a sitting president has the constitutionally-granted ability to seat Supreme Court justices through (not in spite of) the Senate's ‘advise and consent’ edict. 

Democrats on the other hand kick, scream, resist, defame, bully, filibuster, dredge up 30-year-old sleaze (real or not), threaten to hold their breath until they die, throw tantrums, and refuse an affirmative vote when they are not in power and a SCOTUS seat becomes vacant. Brett Kavanaugh is but the latest in a decades-old saga that we’ve all seen before.   

The muckraking, character-assassinating, ‘get-him-at-any-costs’ circus that Brett Kavanaugh’s confirmation has devolved into is, sadly, the entirely predictable latest chapter of a book that repeats itself when a Republican president attempts to seat a Supreme Court justice.

At one point during his epic, snarling, finger-pointing rant in the Senate Judiciary Committee last week Senator Lindsey Graham eyed Judge Kavanaugh and instructed him, “When you see Sotomayor and Kagan tell ‘em that Lindsey said ‘hello’, cause I voted for them!”

Indeed, the Republican senator from South Carolina did vote to confirm both Sonja Sotomayor and Elena Kagan. Among Republicans he was far from alone. When it comes to confirming justices to the Supreme Court bipartisanship exists only when the Oval Office is occupied by a Democrat, if the American people have handed the White House to a Republican -- get ready for a fight.

Here’s the nomination and confirmation votes of men and women recently seated (or rejected) on the SCOTUS, notice a pattern?

Robert Bork was nominated to the SCOTUS in 1987 by a Republican president (Reagan). The smear campaign against Bork was immediate and successful and his nomination was blocked by Senate Democrats with 97% (58 members of their 60-member caucus) voting "no".

Clarence Thomas was nominated to the SCOTUS in 1991 by a Republican president (George H.W. Bush). Thomas’ slandering with sex sleaze accusations has become the stuff of American folklore as has his blistering response to the then-Joe Biden chaired majority-Democrat Judiciary Committee. Thomas ultimately was confirmed via a narrow, partisan 52-48 vote with 46 Democrats voting "no".

Ruth Bader Ginsberg was nominated to the SCOTUS in 1993 by a Democrat president (Clinton). Then as now Ginsberg was/is the most liberal member of the court. Regardless, she was approved by the senate via a massively bipartisan 96-3 vote.

Stephen Breyer was nominated to the SCOTUS in 1994 by a Democrat president (Clinton). All Democrats voted “yes” as did most Republicans on Senate Vote 242 which confirmed Breyer. He was approved on a sweeping 87-9 bipartisan vote.

John Roberts was nominated to the SCOTUS in 2005 by a Republican president (George W. Bush.) Having been confirmed via a 78-22 vote the Roberts confirmation vote is the closest to bipartisan for any Republican nominee in decades. Still, the 22 “no” votes were all Democrats and represented half the Democrat caucus that year.

Sam Alito was nominated to the SCOTUS in 2005 by a Republican president (George W. Bush.) His confirmation was a bitter partisan fight featuring the usual talking points such as the ending of legal abortion and bringing back slavery with then-New York Senator Hillary Rodham Clinton attempting to filibuster the vote and eventually storming off the senate floor after a roll call vote to achieve cloture on the nomination. Alito was confirmed via a highly partisan 58-42 vote. 40 of the senate’s 42 Democrats voted “no.”

Sonja Sotomayor was nominated to the SCOTUS in 2009 by a Democrat president (Obama). Sotomayor, who riled conservatives by repeatedly claiming that a “wise Latina” would make better conclusions than a “white male”,  was approved via Senate Vote 262 a 68-31 bipartisan vote that saw twenty three percent of senate Republicans voting “yes.”

Elena Kagan nominated to the SCOTUS in 2010 by a Democrat president (Obama). Kagan who was arguably the least qualified nominee in modern history as she had never served a single day as a judge at any level, was approved via Senate Vote 229 a 63-37 bipartisan vote in which twelve percent of senate Republicans voted “yes.”

Neil Gorsuch was nominated to the SCOTUS in 2017 by a Republican president (Trump). So upset were Democrats by the selection that they filibustered on the Senate floor for as long as possible. Eventually Senate Vote 111 approved Gorsuch on a partisan 54-45 vote with Democrats holding ranks, as usual. Less than 10% of Senate Democrats joined Republicans in voting to affirm Justice Gorsuch, 42 of 45 voted "no".

Brett Kavanaugh was nominated to the SCOTUS in 2018 by a Republican president (Trump). Most know the rest of the story.

The pattern is easy to see and the tactics stand as proof that everything old is eventually new again. In 1987 Senator Ted Kennedy made the following public statement concerning President Reagan’s selection of Robert Bork:

“Robert Bork's America 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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy,”

Last week House Minority Leader Nancy Pelosi has this to say about President Trump’s selection of Brett Kavanaugh:

“If Judge Kavanaugh is confirmed, Roe v. Wade, affordable health care, voting rights, common-sense gun violence prevention, freedoms of LGBTQ Americans, communities of colors and immigrants are all on the chopping block, just to name a few. And if he doesn't believe in stare decisis as established law, everything is on the table. Again, voting rights, civil rights, Brown v. the Board of Education. All right?”

New team, same playbook, but history makes clear the broader point -- Republicans will vote to confirm Democrat nominees but not the other way around. For the past forty years, Senate Republicans have recognized that to the victor belong the spoils, that a sitting president has the constitutionally-granted ability to seat Supreme Court justices through (not in spite of) the Senate's ‘advise and consent’ edict. 

Democrats on the other hand kick, scream, resist, defame, bully, filibuster, dredge up 30-year-old sleaze (real or not), threaten to hold their breath until they die, throw tantrums, and refuse an affirmative vote when they are not in power and a SCOTUS seat becomes vacant. Brett Kavanaugh is but the latest in a decades-old saga that we’ve all seen before.