The Senate offers a Supreme Court nominations table, which reveals that throughout most of the history of the United States justices were nominated and confirmed in days or weeks, not months. Until the 1960s, voice votes for confirmation were common, without a roll call. The process was relatively quick and painless. The last voice vote confirmed Abe Fortas in 1965.
Since Stephen Breyer in 1994, no new nominee has been confirmed with 70 votes or more.
How fast were confirmations? Twice, Abraham Lincoln nominated and the Senate confirmed a court appointee within the same day. At the start of the twentieth century, Taft, Harding, and Hoover waited mere days for their nominees to be confirmed. It took a few days to confirm most of Truman’s nominees, too.
Things started to change during the presidency of Lyndon Johnson. Nominations started to take two and three months.
Under George W. Bush, confirmations became increasingly partisan. Both of Bill Clinton’s appointments to the bench were approved by overwhelming majorities. Stephen G. Breyer was nominated May 17, 1994, and confirmed on July 29 by a 87-9 vote. A year earlier, Ruth Bader Ginsburg was nominated Jun 22, 1993, and confirmed August 3, by a 96-3 vote.
The concept that a president should be entitled to the qualified nominees of his or her choice doesn’t apply. Highly qualified nominees face tough opposition in the Senate, no matter which party occupies the White House. The lack of a hearing and vote on Merrick Garland wasn’t new, but it was entirely unjustified. The Senate could have held a hearing and still rejected the nominee.
During the nineteenth century, there were some close votes and at least twice the Senate kept seats open (or even reduced the size of the court) to thwart presidential power. But that was in the years leading up the Civil War. After the Civil War, a tradition of deference to the president returned.
Why are we back to the partisanship last experienced before the Civil War? What happened?
An increasingly partisan Senate, more partisan media emerged (talk radio), and the Internet emerged. Social media has only magnified the problem of Senators playing to their base.
It isn’t only Supreme Court confirmation hearings that changed. All confirmation hearings are opportunities for Senators to grandstand and play to the cameras in the room. Hearings exist today for the potential cable news exposure and Twitter retweets.
The hearings for Brett Kavanaugh are more about launching presidential campaigns than confirming a justice to the Supreme Court. It’s purely an absurdist theatrical event.
The Republicans should have held a vote on Garland, but the Senate gets to set Senate rules. There were violations of recent tradition, but nothing outside the Constitutional authority of the majority party. Still, the Republican decision to block Garland added to the partisan rancor surrounding nominations.
We didn’t need elaborate hearings throughout most of our nation’s history. We still don’t really need these hearings. They aren’t useful except to the Senators seeking opportunities for self-promotion. But, we live in the era of social media and Donald Trump. Everything is a reality TV show now.
Nothing will change without a Constitutional Amendment setting parameters for confirmation, a Constitutionally mandated number of Justices, and term or age limits for those Justices. This week, we have plenty of evidence demonstrating how broken the Senate has become and their abdication of statecraft for the lure of partisanship.
Sadly, things will not change. The Senate is turning into the House, surrendering its role as the more deliberative and collegial legislative body. Welcome to the era of supremely pointless confirmation hearings. It won’t end when Trump leaves the White House.
