MAY 30, 2009
GOP UNLIKELY TO GAIN FROM BID TO BLOCK SOTOMAYOR
By JOSHUA SPIVAK
With President Obama’s selection of Sonia Sotomayor to the Supreme Court, Republican lawmakers and conservative activists are readying for what they hope is a bruising confirmation hearing. Not that they have too much chance of stopping the pick, but party leaders appear to be wishing for a hard-fought battle, one that could help revive the beleaguered party’s spirits.
Already, leading Republicans have weighed in against the choice. But they shouldn’t count on too much of a fight. Even without the Democrats super-majority in the Senate, the Republicans would not have much hope of scoring lasting points on a nominee.
Taking a broad historic look, the Republicans should have reason to be hopeful. Contentious nomination battles are nothing unusual. In fact, ever since George Washington started nominating justices in 1789, nearly a quarter of all Supreme Court nominees have either been rejected by a vote of the Senate, had the voting on their nominations repeatedly postponed or filibustered into nonexistence or have eventually taken their names out of consideration.
Indeed, the policy of rejecting candidates began nearly immediately, all the way back in 1795, as John Rutledge, George Washington’s choice to be the second chief justice, was rejected by a vote of the Senate. In the 19th century, more than one-third of the candidates didn’t make it onto the court. But the Republicans should not take too much solace from this record.
The stretch between 1894 and 1968, when only one Supreme Court nominee was rejected, tells the true tale. This record of success was not due to a steady stream of hypercompetent judicial nominees or a bipartisan love fest. Rather, the 74-year epoch was noteworthy for long stretches in which one party dominated both the presidency and Congress. It was only after the election of Richard Nixon in 1968 that divided government became the norm. This time frame coincides nicely with most of the recent battles over presidential judicial nominees.
Looking at the recent tough battles for nominees, it is clear that divided government is the key to a memorable nomination fight. Robert Bork, whose name has become synonymous with Senate confirmation hearings, was nominated by Ronald Reagan just after the Democrats regained control of the Senate. Clarence Thomas, confirmed by a slim 52-48 vote, was approved in the face of a solid Democratic majority. Similarly, other failed nominees, such as Nixon’s twin failures of Clement Haynsworth and Harrold Carswell, were proposed to a Senate dominated by the other party.
On the other hand, when one party controls both the presidency and the Senate, the nomination is handled with much less rancor, no matter how much the minority party wants to get involved. Few people will recall the confirmation hearings of Clinton’s nominees, Stephen Breyer and Ruth Bader Ginsburg.
And, despite the fact that Obama himself voted against them, there was nothing particularly memorable about John Roberts’ or Samuel Alito’s hearings. Of course, Bush’s much derided nomination of Harriet Meyers was quickly sunk, but it was members of his own party who torpedoed the choice.
The fact that the Democrats have the majority — one large enough that they need minimal assistance from the Republicans to break a filibuster — does not automatically mean that the Republicans will be prevented from recharging their base and using the nomination hearing to return some vigor to their beleaguered ranks. After all, as the nation saw with repeated Cabinet and subcabinet nominees facing embarrassing tax questions, there is every chance that any nominee, even former high-ranking elected officials, has skeletons in the closet. But the Republicans and conservative interest groups should not count on Sonia Sotomayor to revive their fortunes.
Spivak, an attorney and public relations executive, is a research fellow at the Hugh L. Carey Center for Government Reform at Wagner College in New York City.