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From Ginsburg and Breyer to the Present
A long view of how and why Supreme Court confirmation process has changed
Several weeks ago, I took a long view of how the confirmation process for lower-court nominations has changed since my work three decades ago as a Senate Judiciary Committee staffer for Senator Orrin Hatch. Let’s now do the same for Supreme Court nominations.
Apples-to-apples comparisons are rare, but the context of Bill Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994 bears a striking similarity to the context of Barack Obama’s nominations of Sonia Sotomayor and Elena Kagan sixteen years later, in 2009 and 2010:
A charismatic, newly elected Democratic president has the gift of two Supreme Court vacancies in his first two years in office.
The president, a lawyer and sometime professor of constitutional law, has a keen interest in the Supreme Court.
The president enjoys a commanding Democratic majority in the Senate: in 1993-1994, 57 seats up until June 1993, and 56 seats through Election Day 1994; in 2009-2010, 58-60 seats at all relevant times.
In each instance, the retiring justice publicly announces his forthcoming retirement in the spring, affording the White House a leisurely path to confirmation.
But there is one conspicuous difference between these two sets of nominations: Ginsburg (96-3) and Breyer (87-9) were confirmed overwhelmingly, with negative votes in the single digits, while Sotomayor (68-31) and Kagan (63-37) each received more than thirty negative votes. Stated more starkly: Only three Republicans voted against Ginsburg and only nine against Breyer, while only nine Republicans voted for Sotomayor and only five for Kagan.
And of course the confirmation process has become even more polarized since Sotomayor’s and Kagan’s confirmations:
When Obama nominated Merrick Garland in March 2016 to fill the vacancy resulting from Antonin Scalia’s death, Republicans used their control of the Senate to forestall any action on the nomination.
When Donald Trump nominated Neil Gorsuch to fill Scalia’s seat in 2017, Senate Democrats filibustered the nomination, mustering 44 votes to block cloture. Senate Republicans then completed former Democratic leader Harry Reid’s project of abolishing the filibuster for judicial nominees. The Senate confirmed Gorsuch by a vote of 54-45, with only three Democrats joining all Republicans in voting to confirm.
Only one Democrat—Joe Manchin of West Virginia—voted for Trump’s nomination of Brett Kavanaugh in 2018, and none voted for Trump’s nomination of Amy Coney Barrett in 2020.
Only three Republicans—Susan Collins, Lisa Murkowski, and Mitt Romney—voted for Joe Biden’s nomination of Ketanji Brown Jackson in 2022.
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On the Ginsburg and Breyer nominations in 1993 and 1994, Senate Republicans broadly embraced what I call the “deference” model on Supreme Court nominations. Under the deference model, senators deciding whether to support a nominee selected by a president of the opposite party ignore or demote considerations of judicial philosophy, including their expectations of how a nominee would vote on hot-button matters. Giving lots of deference to the president, senators instead focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience.
I don’t think that it’s controversial to observe that all but a very few senators have abandoned the deference model. They have instead made a nominee’s judicial philosophy—or judicial ideology, if you prefer—central to whether they vote to confirm the nominee. Or, to state roughly the same point in a less elevated way, senators support or oppose a nominee depending on how they—and the political base they respond to—expect the nominee to decide cases as a justice.
The many Republican votes against Sotomayor and Kagan illustrate this shift. If you had told me in 1994 that Senator Hatch and lots of other Republicans would vote against the first Hispanic nominee to the Supreme Court—a woman who had served for 17 years as a federal district and appellate judge and who had, not surprisingly, been rated by the American Bar Association as “highly qualified” for the Court—I would have found it difficult to imagine. Ditto for Kagan: While her lack of judicial experience would be a strike against her under the deference model, her strong intellect, the high regard that many conservatives (including Justice Scalia) had for her, and her brief tenure as Solicitor General would more than offset that.
What changed for Senate Republicans between 1994 and 2009?
One big part of the answer is that Senate Democrats had clearly repudiated the deference model in the meantime, first in their obstruction of George W. Bush’s appellate nominees, then on Bush’s nominations of John Roberts and Samuel Alito to the two Supreme Court vacancies that arose in 2005. Twenty-two Democrats voted against Roberts’s confirmation, and the number would have been much higher except that many Democrats were saving their ammunition for the fight over Justice O’Connor’s successor. Democrats then tried to filibuster Alito’s nomination, and 42 of them voted against his confirmation.
Another big part of the answer is that the conservative base of the Republican party increasingly mobilized over judicial nominations. That meant that newly elected senators were much more likely to care about, and to be responsive on, judicial nominations. (Of the 31 Republicans who voted against Sotomayor, 23 were not in the Senate in 1994.) It also made the deference model much riskier to adopt: a senator who might previously have calculated that his own party wouldn’t punish him for supporting the nominee of an opposite-party president suddenly had to worry that doing so would lead to a primary challenge.
Intertwined with all of this were technological changes that opened up the confirmation process to the broader public. For Ginsburg and Breyer, the confirmation process was very much an inside game. In the pre-Internet age, aspects of a nominee’s record that might be very controversial or embarrassing could be bottled up. Information and allegations about candidates did not circulate widely. In sharp contrast—to take but one example—news of Sotomayor’s statement in 2001 that “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life” spread quickly and generated lots of trouble for her nomination.
Some might argue that Republicans deferred to Clinton on the Ginsburg and Breyer nominations because Clinton consulted with Hatch (and, to a much lesser extent, with some other Republican senators) before making those nominations. But that has things backwards: Clinton consulted with Hatch precisely because Hatch made clear from the outset that he was committed to the deference model—that he would not draw an ideological line in the sand but would instead simply help Clinton avoid an unnecessary fight. Neither Bush in 2005 nor Obama in 2009 and 2010 could conceivably have gotten a similar commitment from opposite-party senators.
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The deference model is long gone, and it’s not going to return any time soon.
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