Supreme Court battles go back to George Washington's time
Posted: Apr 02 2017 04:44PM EDT
Video Posted: Apr 03 2017 09:34AM EDT
Updated: Apr 03 2017 09:53AM EDT
WASHINGTON (WTXF/AP) - This week, the Senate Judiciary Committee and then the full Senate are expected to confirm Judge Neil Gorsuch to the Supreme Court.
Gorsuch would fill the seat vacated by the death of Antonin Scalia, more than a year ago.
It was the Republican talking point of the Sunday talk shows: If Democrats delay Gorsuch's confirmation to the Supreme Court this week, Republicans said, it would be an affront to history -- the first time a nominee to the high court had been filibustered.
True? Only in a narrow sense. Partisanship has denied a Supreme Court seat to a number of nominees, most recently former President Barack Obama's choice for the court last year.
Republicans are advancing their argument about historical precedent to try to soften the ground for a possible change in Senate rules to place Gorsuch on the court. If Republicans now in control of the Senate can't get enough Democrats behind them -- it takes 60 votes to end a filibuster -- they may shift procedures to require only a simple majority of 51 votes. When then-majority Democrats made that switch for lower-level nominees, Republicans cried foul.
Some comments from the Sunday news programs and the larger historical perspective:
SENATE MAJORITY LEADER MITCH McCONNELL, R-Ky.: "No Supreme Court justice has ever, in the history of our country, been stopped by a partisan filibuster, ever." "Fox News Sunday"
SEN. JOHN CORNYN, R-Texas: "This is unprecedented in American history, a partisan filibuster of a Supreme Court nominee." -- CBS' "Face the Nation."
THE FACTS: The senators are ignoring their blockade last year of Obama's nomination of Merrick Garland to the same seat Gorsuch will occupy if he's confirmed this week.
Obama nominated Garland more than a year ago but the Senate's majority Republicans put him on ice, declining to give him a hearing. A filibuster is an unlimited debate that delays a vote, and technically not what stopped Garland. But in effect, Sen. Angus King, I-Maine, said Sunday, Garland became the "granddaddy of filibusters."
McConnell and Cornyn are correct in this sense: If Democrats were to succeed in blocking Gorsuch, it would be a first for the nomination of a judge to join the court. But one previous high court nomination was killed by a filibuster, in 1968. That's when opponents of Supreme Court Justice Abe Fortas stopped him from being elevated to chief justice.
When McConnell and Cornyn said no one had been stopped by a "partisan filibuster," they surely had that episode in mind. Fortas faced opposition from a coalition of Democrats and Republicans. So his ambitions were thwarted by a bipartisan filibuster.
It's only been since 1949 that nominations have been subject to a potential supermajority requirement under Senate rules. In the 19th century, the Senate used procedural votes or took no action at all on 10 high court nominees who were thwarted. Most had been chosen by so-called accidental presidents -- men who ascended to the White House after the death of a president and lacked strong support in Congress.
Wondering when Supreme Court nominations became so politically contentious? Only about 222 years ago -- when the Senate voted down George Washington's choice for chief justice.
This year's brouhaha sees Senate Democrats and Republicans bracing for a showdown over President Donald Trump's nominee, Gorsuch. It's the latest twist in the political wrangling that has surrounded the high court vacancy almost from the moment Justice Antonin Scalia died in February 2016.
"We are in an era of extreme partisan energy right now," said University of Georgia law professor Lori Ringhand. "In such a moment, the partisanship will manifest itself across government, and there's no reason to think the nomination process will be exempt from that. It hasn't been in the past,"
Each side has accused the other of unprecedented obstruction. Republicans wouldn't even hold a hearing for Merrick Garland, President Barack Obama's nominee. Democrats are threatening a filibuster, which takes 60 votes to overcome, to try to stop Gorsuch from becoming a justice. If they succeed, Republicans who control the Senate could change the rules and prevail with a simple majority vote in the 100-member body.
The struggle spilled over into the Sunday news shows, where the Senate Democratic leader, Chuck Schumer, told NBC's "Meet the Press" it's "highly, highly unlikely" that Gorsuch will get 60 votes and Senate Majority Leader Mitch McConnell vowed the nominee will be confirmed this week one way or the other.
As she lays out in "Supreme Court Confirmation Hearings and Constitutional Change," the book she co-wrote, Ringhand said, "There were more rejected nominees in the first half of the nation's history than in the second half. That controversy has been partisan in many cases, back to George Washington."
"Confirmations have been episodically controversial," said Ringhand, who is the Georgia law school's associate dean. "The level of controversy has ebbed and flowed."
John Rutledge, a South Carolinian who was a drafter of the Constitution, was the first to succumb to politics. The Senate confirmed Rutledge as a justice in 1789, a post he gave up a couple of years later to become South Carolina's chief justice.
In 1795, Washington nominated Rutledge to replace John Jay as chief justice. By then, Rutledge had become an outspoken opponent of the Jay Treaty, which sought to reduce tensions with England. A year after ratifying the treaty, the Senate voted down Rutledge's nomination.
The rejected chief justice was partly a victim of his own design. He was among the drafters who insisted Congress should have a role in the Supreme Court appointment process, rather than leave it solely to the president, historian Henry Abraham wrote in his history of high court appointments, "Justices, Presidents, and Senators."
Rutledge was not the last to get close to the lifetime appointment to the court only to see it yanked away. The most recent were Garland and former White House counsel Harriet Miers, whose nomination by President George W. Bush was withdrawn under pressure from conservatives.
In between, President John Tyler broke with the Whigs who controlled the Senate and couldn't even get a vote for three nominees. A fourth was rejected and only one of Tyler's choices ever made it to the court. A quarter-century later, following the Civil War, the Republican-dominated Congress actually abolished a Supreme Court seat rather than act on a nomination by President Andrew Johnson.
Even some who have made it to the court endured difficult confirmations. Justice Clarence Thomas faced questions about former colleague Anita Hill's claims that he sexually harassed her. Justice Felix Frankfurter's loyalty to the United States was questioned because of his birth in Austria, his Judaism and his affiliation with the American Civil Liberties Union.
But American politicians don't tend to look back so far. Democrats fixate on 1968, the last year of the Johnson administration, when Republicans and southern Democrats came together to filibuster the nomination of Abe Fortas to be chief justice.
Republicans point to 1987, when Democrats led the way in rejecting Ronald Reagan's nomination of Robert Bork for the high court. The 58-42 vote against Bork came after a full hearing and Senate debate.
Still, it's understandable for the public to see the Gorsuch fight as the product of a recent change in American politics.
Barbara Perry, a University of Virginia expert on the presidency, said she spoke about the confirmation process recently in Charlottesville, Virginia.
"A woman stood up and said, `When did the court become so political?"' Perry recalled. Around the founding of the country, she and a colleague replied, "or at least since we've had two political parties."