Judge Ketanji Brown Jackson made history as the first black woman to win Senate confirmation to the Supreme Court. She will actually take her seat when Justice Stephen Breyer’s retirement becomes effective at the end of the term.
But to hear some tell it, the confirmation process Jackson endured made history in a negative way — it was historically bad. “There was verbal abuse. The anger. The constant interruptions,” said President Joe Biden. “ The most vile, baseless assertions and accusations.”
“He is somebody who has more experience overseeing Supreme Court hearings than anyone living,” White House press secretary Jen Psaki said of Biden. “He has overseen them during Republican and Democratic presidents and expects a certain level of conduct, professionalism, and decorum. And that is not what we saw.” She later described the three Republican senators who voted for Jackson as “bucking the trend in their party of not supporting an eminently qualified nominee.”
George Will, the dean of Washington conservative columnists, called Jackson someone “who in a reasonable era would be confirmed 100-0.” The final vote on her nomination was 53-47.
But those quoting Will’s column as the latest example of the death of reasonable Republicanism might note what he identified as “the beginning of confirmation circuses”: the failed nomination of Robert Bork in 1987 when Biden was chairman of the Senate Judiciary Committee.
Will also wrote in the same piece that opponents of Justice Clarence Thomas “inflicted a Senate browbeating even worse” than what Bork went through. That “level of conduct, professionalism, and decorum,” as Psaki put it, was also presided over by Biden. The final vote on Thomas was 52-48.
To go back to when Democrats were last willing to unanimously support a qualified nominee who was a known conservative and possible threat to Roe v. Wade, you have to go all the way back to the 98-0 vote for Antonin Scalia in 1986. And even that coincided with a somewhat more contentious vote over promoting William Rehnquist to chief justice.
Republicans may have reached the point where they were willing to play hardball over the high court. But Democrats got there first. Even after the Bork and Thomas provocations, only nine Republicans voted against Breyer and just three voted no when Bill Clinton tapped Ruth Bader Ginsburg. Justice Ginsburg became a liberal icon, but she was no stealth nominee at the time. She was a former general counsel of the ACLU, six years after such an affiliation was used to great effect to document Democratic presidential candidate Michael Dukakis’ excessive liberalism.
Democrats responded by filibustering some of George W. Bush’s nominees to lower federal judgeships, including Janice Rogers Brown. There was a less successful attempt to filibuster Samuel Alito’s nomination to the Supreme Court. Biden supported both efforts.
Still, Alito only got four Democratic votes. Half the Democrats in the Senate voted against Chief Justice John Roberts, now the least reliable member of the conservative bloc. It was only after that — and following a conservative revolt that led Bush to also yank his own nomination of Harriet Miers — that Republicans began employing similar tactics against Democratic nominees, including no hearings or up-or-down vote for Merrick Garland in 2016.
Four Democrats voted to confirm Justice Neil Gorsuch. One voted for Justice Brett Kavanaugh, whose hearings also displayed rather less decorum than Jackson’s. Zero voted for Justice Amy Coney Barrett.
Democrats were also first to adopt a Roe litmus test. Not since John F. Kennedy appointed Justice Byron White has a Democrat put an anti-Roe jurist on the Supreme Court. Roe survived in the 1992 Planned Parenthood v. Casey decision because three of Ronald Reagan and George H.W. Bush’s nominees supported its core holding on abortion. Justice Anthony Kennedy, who the Democrats let through on Reagan’s third try after Bork, wrote the plurality opinion.
This made the confirmation hearings more contentious in three ways. First, Democrats became increasingly hostile to any nominee they perceived as a possible vote to overturn Roe. This was a major factor in why Kennedy had an easier time getting through a Democratic Senate than Bork, or Justice David Souter than Thomas. Because Republican nominees had a mixed record on Roe, conservative activists began pressuring GOP presidents to nominate more conservative justices (consider Donald Trump’s 2016 list). These same activists also became desirous of Republican senators voting against liberal Democratic nominees.
That’s what all but three Republican senators did to Jackson, including Sen. Lindsey Graham, who voted for both of Barack Obama’s Supreme Court nominees. But however historic Jackson’s confirmation is, history did not begin the day she was nominated.
Now a 1945 Contributing Editor, W. James Antle III is the Washington Examiner’s politics editor. He was previously managing editor of the Daily Caller, associate editor of the American Spectator, and senior writer for the American Conservative. He is the author of Devouring Freedom: Can Big Government Ever Be Stopped? You can follow home on Twitter: @Jimantle.
