Donald Trump has made his second nomination for the Supreme Court, and some Democrats are pissed, with a push to increase the court to eleven the next time they have the White House and the Senate (They don’t seem to quite realize that Trump could do it now if Mitch McConnell mentions this will let him put runner-ups from the Gorsuch/ Kennedy interviews on the court.)
A big part of the Democratic complaint is that McConnell behaved outrageously denying Merick Garland a vote. However, I think a look at the history suggests that Democrats are willing to play hardball on Supreme Court picks, and have escalated the situation.
In 1968, Abe Fortas’ nomination to Chief Justice was rejected by the Senate, although a third of his supporters were Republicans and about a third of his Senate detractors were Democrats. There were some ethics questions, which meant that this fell under a different category than the later controversies.
The defeat of Robert Bork represented a new development where a judicial nominee was defeated because of disagreements with his views, as opposed to personal scandals as occurred with Fortas a generation earlier. In 1991, the Senate confirmed Clarence Thomas 52-48.
Bill Clinton appointee Ruth Bader Ginsburg was nominated by 96-3 in the Senate, while Stephen Breyer got 87-9. This showed that Senate Republicans were willing to support qualified nominees from Democratic presidents. In contrast, half of Senate Democrats voted against John Roberts, and the overwhelming majority voted against Alito who was confirmed 58-42, mainly because of political disagreements. When Obama became President, the majority of Republicans voted against his first two choices for the Supreme Court, but this didn’t happen in a vacuum.
There are a few things during the Bush years that did set the stage for opposition to Obama. Schumer used many Senate maneuvers to block conservative judges Bush nominated for lower courts. As the New York Times noted in 2003…
Most important, people on Capitol Hill say, Mr. Schumer urged Democratic colleagues in the Senate to use a tactic that some were initially reluctant to pursue, and that has since roiled the Senate: a filibuster on the floor of the chamber to block votes on nominees he and other Democrats had decided to oppose. The resulting standoff has Democrats and Republicans on the committee so tense that some joke that they need to come to work with bodyguards.
An internal memo by the staff of Dick Durbin suggested it was important to block judicial nominee Miguel Estrada partly because he was latino, and a potential Supreme Court pick. Schumer expressed a policy goal of blocking any Bush appointees in Late 2007. Democrats showed their support for this by backing him for leadership posts.
As Senator, Obama voted against Roberts and Alito. He was rewarded with a presidential nomination suggesting that Democrats are in agreement with the idea that what matters is the politics of a pick rather than qualifications or character.
The filibustering of Gorsuch represented one more escalation (and it was mostly about posturing, since Republicans broke the filibuster on Supreme Court nominees for a conventionally qualified justice who didn’t change the makeup of the court rather than having to justify it with someone less qualified, or someone who would represent a bigger change from the preceding court.)
I’m sure the escalation will continue, and I don’t know what form it will take. It’s kind of scary to imagine what happens if there’s a vacancy at any point when the opposing party controls the Senate. You can add to that the problem of half the country not being able to identify any Supreme Court justice, which means the people who care the most will be the partisans.
Given how close the 2016 election ended up being, and how some conservatives held their nose for Trump, it’s possible he wouldn’t be in the White House if Obama had recognized that the Republican controlled Senate was going to allow liberal justices to gain a majority on the court, and had picked an old moderate Republican to replace the conservative Scalia.