Anyone watching the confirmation hearings of Brett Kavanaugh last week can see the way we appoint judges to the Supreme Court is broken. The level of posturing and virtue signaling, combined with the absurd attacks on Judge Kavanaugh, is obviously not what the Founders intended when they designed our Federal Government. This begs the question, who broke the Supreme Court?
If you ask a Democrat, they will blame Republicans. When asked about Judge Kavanaugh, Democrat Senate Minority Leader Chuck Schumer said, “In the old days, the president would consult with Republicans and Democrats in the Senate on a qualified judge and then after careful deliberation nominate a jurist to get bipartisan support… The President has gone to two hard right groups, the Heritage Foundation and the Federalist Society, and asked them, not the Senate, to advise and consent on a Supreme Court nomination.” He said something similar about Judge Neil Gorsuch last year.
According to Chuck Schumer, in the old days the President would nominate a nice judge everyone supported, except now the Republicans only nominate extremists like Brett Kavanaugh… Except this is simply not true. Democrats have a consistent record of nominating ideologues to the court and are less likely to support Republican nominees.
Since 1975, fourteen nominees have been voted onto the Supreme Court, and one judge has been elevated from associate to chief justice. The eleven Republican nominees are as follows:
- John Paul Stevens, confirmed 98-0
- Sandra Day O’Connor, confirmed 99-0
- Robert Bork, rejected 42-58 with 5.4% opposition support
- Antonin Scalia, confirmed 99-0
- Anthony Kennedy, confirmed 97-0
- William Rehnquist, elevated to Chief Justice, confirmed 65-33 with 34% opposition support
- Clarence Thomas, confirmed 52-48 with 18% opposition party support
- David Souter, confirmed 90-9 with 84% opposition party support
- John Roberts- nominated to serve as Chief Justice, confirmed 78-22 with 49% opposition party support
- Samuel Alito, confirmed 58-42, 9% opposition party support
- Neil Gorsuch, confirmed 54-45, with 4.4% opposition party support
The four Democrat nominees are as follows
- Ruth Ginsburg, confirmed 96-3 with 93% opposition party support
- Stephen Breyer, confirmed 87-9 with 78% opposition party support
- Elena Kagan, confirmed 63-37, with 12% opposition party support
- Sonia Sotomayor, confirmed 68-31, with 20% opposition party support
This data shows three things. First, the system is getting radically more polarized and less bipartisan for all nominees. This is destructive and must stop. Second, Democratic nominees receive more votes, averaging 78.5 votes while the Republican nominees get an average of 75.4. That number would be significantly lower if the four Republican nominees who had no opposition weren’t inflating the statistic. Thirdly, Republican nominees on average receive 54.9% opposition support vs. 50.75% for Democrat nominees. So is Senator Schumer is right about Democrats being the bipartisan ones? Not quite.
If we use the data since 1990, a smaller but more indicative sample, the Republican nominees get just 33% support from Democrats. The likelihood of little Democrat support for Justice Kavanaugh will probably drop that number further. Democrats are not the poor victims of partisan spirit when it comes to the Supreme Court. They are the party most responsible for exacerbating it.
What about the claim that the Republicans keep nominating extremist judges? First, Brett Kavanaugh is not an extremist judge, so that argument wouldn’t apply here. Of the four Democrat-appointed judges on the court, all of them vote reliably to the left. It is not so with Republican justices.
Two recent Republican justices, Souter and Stevens, formed part of the Court’s left wing during the 1990s. Democrats appoint consistently left-wing judges, with most moderates being Republican appointees, and this trend dates back at least to the 1960s. It’s no coincidence that the moderate on the Court we are replacing is Anthony Kennedy, a Republican appointee.
This Republican moderation changes the Supreme Court dramatically. The most famous case is in 1992 when the court reviewed a Pennsylvania abortion law in Planned Parenthood v Casey. Four Justices, Scalia, Thomas, Byron White, and Rehnquist, were prepared to use this case to overturn Roe v Wade. Except Justices Kennedy, Souter, and O’Connor, all Republican appointees, sided with the court’s left-wing to reaffirm Roe. While there is evidence that modern Republican nominees are more conservative than in the past, if someone is considered a moderate on the court, it’s a safe bet they were put there by a Republican.
Senator Schumer and the Democrats are right to claim that Republican Supreme Court nominees are getting more conservative and that left-wing Democrat nominees are getting less Republican support. If we accept that turnabout is fair play in politics, then the Democrats have no one to blame for this but themselves.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.