President Biden Gets a Supreme Court Pick. May the Mitch Be with You…
On March 16, 2016, President Barack Obama stood in the Rose Garden of the White House alongside his Vice President, Joe Biden, and Chief Judge of the U.S. Court of Appeals for the District of Columbia, Merrick Garland. It was a nearly perfect day: a comfortable temperature and partly cloudy, but with the sun streaming in.
They stood before guests and press for President Obama to announce his nomination of Garland to the U.S. Supreme Court to replace Justice Antonin Scalia. Normally these were momentous moments where the President would be able to further shape the direction of the Supreme Court. But on this day, the moment was more Don Quixotesque. Senate Majority Leader Mitch McConnell said that the nomination was dead on arrival. There wouldn’t even be a process. The Rose Garden event was a hail Mary as the clock was running out on President Obama’s term.
President Obama tried everything to avoid the trap of a failed Supreme Court confirmation. Justice Scalia’s originalist and textualist jurisprudence made him a darling of the conservative movement. More than that, Scalia never shied from controversial opinions or shocking language. In a now infamous concurring opinion over Indiana indecency laws in 1991 he wrote, “The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd.” That’s not typical prose of a Supreme Court Justice. But it’s engrossing.
Scalia was gregarious and more exciting than the typical stereotype of a stoic and reserved judge, or a judge who used dry, humorless language. As a graduate student in public law, I loved reading Scalia’s opinions. I still do. You can disagree with him, but still love reading what he had to say — and how he said it.
Merrick Garland appeared to be the complete opposite. That was by design. He was not presented as the counter pugnacious liberal extremist version of Scalia; he was by all accounts a judicial moderate. He was tempered and reserved. He looked like the impartial and objective jurist. President Obama’s play was to publicly shame the Republican majority by exposing their blatant political act by refusing to confirm Garland. But the Republican majority didn’t actively reject Garland. In some ways it was worst: they simply ignored him.
Given the circumstances of the moment President Obama’s nomination was doomed to fail before it even began. He couldn’t overcome two of the three major impediments found by Professor John Massaro in an important study called Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations. In Dr. Massaro’s outstanding study of unsuccessful Supreme Court nominations, he found the likelihood of failure was often greater when the Senate and President were opposing parties or ideologies (with political party and ideology not always being interchangeable); when the timing wasn’t right, particularly when the president was a lame duck in his final year of his final term; and when presidential mismanagement of the process occurred.
Under Massaro’s theory, President Obama faced a steep uphill — practically insurmountable — battle before it even began. The President, as the leader of the Democratic party, faced a hostile Senate majority where for years the Republicans blocked legislation and appointments. It was more pronounced given his lame duck status in 2016 — his final year in office and as the country was in the midst of a presidential contest. The final factor found in many other failed Supreme Court nominations by Massaro, presidential mismanagement, doesn’t appear to be the case here.* President Obama’s team did significant outreach and vetting. The had their ducks in a row. Timing, politics, and history was simply a more effective counterweight.
The two factors of fate and circumstance, more specifically timing and opposite ideologies between the Senate majority and President, ended up being Obama’s Achilles’ heel in the Garland nomination. In February 2017, the Scalia Supreme Court vacancy was ultimately filled by newly elected president, Donald Trump — with the confirmation of Justice Neil Gorsuch.
The two factors of fate and circumstance, more specifically timing and opposite ideologies between the Senate majority and President, ended up being Obama’s Achilles’ heel in the Garland nomination.
President Trump was highly successful in molding the federal judiciary and he owes a lot of his success not only to outside groups like the Federalist society, but also to Senate Republican Leader Mitch McConnell. With a Republican majority in the Senate driven to confirm as many federal judges as possible, Trump had great success. That success was particularly clear with the Supreme Court because of a little luck, hard nose politics, and good timing.
First, President Trump had the luck of a mostly-lock step Senate Republican majority throughout and an unprecedented number of Supreme Court vacancies in his four-year term. Trump selected three Supreme Court justices in four years. To put that into context, Jimmy Carter did not have a pick to the Supreme Court during his four years as president. Presidents Obama, George W. Bush, and Clinton got to select two each, but that was over eight years or two-terms. The last time a president chose at least three new Supreme Court justices was President Reagan, but that was over eight years. You have to go all the way back to President Eisenhower for more — with the selection of five justices to the Supreme Court over two terms.
As some commentators have recently noted, the secret weapon to President Trump’s success was Leader McConnell. First, they noted Leader McConnell turbocharged the confirmation process for Trump’s final selection, Justice Amy Coney Barrett. In the final two months of the 2020 presidential contest, Judge Barrett was confirmed in less than a month. In Washington such speed is almost unthinkable — especially during a hotly contested presidential election.
While it is true that Trump’s final appointment of Justice Barrett was quickly confirmed in the middle of the 2020 presidential election, it’s not unprecedented for its speed. For example, President Reagan’s first Supreme Court nominee, Sandra Day O’Connor, was confirmed in 33 days in 1981 and President Ford’s nominee John Paul Stevens was confirmed in 19 days in 1975. Political party or ideology doesn’t adequately describe the situation in these cases given the opposite political party of the president was in control of the Senate in 1975 and the same party of the president’s was in control in 1981.
While it is true that Trump’s final appointment of Justice Barrett was quickly confirmed in the middle of the 2020 presidential election, it’s not unprecedented for its speed. For example, President Reagan’s first Supreme Court nominee, Sandra Day O’Connor, was confirmed in 33 days in 1981 and President Ford’s nominee John Paul Stevens was confirmed in 19 days in 1975.
The longest confirmation of the modern era was Judge Robert Bork who was nominated by President Reagan in 1987. His nomination faced an uproar given his theory of judicial originalism was too extreme for the Supreme Court and many groups progressive groups mobilized against his nomination. After 108 days, and after intense pressure over his controversial positions, as well as admitting to things that wouldn’t be disqualifying today (i.e. smoking marijuana when he was a law professor), Bork’s nomination was defeated.
Table 1. Days from Nomination to Confirmation/Other Action of Supreme Court Justice Nominees from President Ford through President Trump (Ranked Shortest to Longest)
One interesting side note: when researching the length of time it took to confirm a president’s nominee, women were confirmed more quickly than men. Of the five women ever confirmed to the Supreme Court, it took an average of 51 days from nomination to confirmation, when it took an average of 65 days for men during the same time period (this doesn’t consider those nominees who withdrew from consideration— only officially voted on by the Senate). The two Justices (O’Connor and Barrett) nominated by Republicans had faster confirmations (30 days) versus their counterparts (Ginsburg, Sotomayor, Kagan) nominated by Democrats (51 days).
Of the five women ever confirmed to the Supreme Court, it took an average of 51 days from nomination to confirmation, when it took an average of 65 days for men during the same time period (this doesn’t consider those nominees who withdrew from consideration — only officially voted on by the Senate). The two Justices (O’Connor and Barrett) nominated by Republicans had faster confirmations (30 days) versus their counterparts (Ginsburg, Sotomayor, Kagan) nominated by Democrats (51 days).
Although Leader McConnell may not have perfected the speed of confirmation, the point is clear that a faster process would likely be more successful in a highly polarized political environment.
A second and more significant impact Senator McConnell had on the confirmation process was eliminating the 60-vote filibuster for Supreme Court confirmations. When he was leader of the Senate, not only could the narrow Republican majority in the Senate avoid procedural maneuvers to slow a nominee in order to derail confirmation, the President could get more controversial or ideological extreme judges approved.
President Trump was successful in having his nominees confirmed, but in each case it was highly contentious and partisan. Justice Neil Gorsuch was approved 54–45 in 2017 mostly along party lines. Justice Brett Kavanaugh was confirmed by a razor’s edge of 50–48 in 2018 after allegations of sexual assault threw the nomination into question. Finally, in the middle of the 2020 presidential campaign, Justice Amy Coney Barrett was confirmed 52–48 — again mostly along party lines (with several Republicans voting against the nominee). There have been close votes in the past, but it is unusual for all of a president’s nominees to be confirmed by tight margins like in the case of Trump.
On average, Trump’s Supreme Court nominees had a 5-vote margin of victory which was much tighter than the other presidents that came before him. President Clinton’s picks, for instance, had an 86-vote margin of victory on average and President Obama’s selections during an ever-increasing polarized environment had a 32-vote margin of victory.
On average, Trump’s Supreme Court nominees had a 5-vote margin of victory which was much tighter than the other presidents that came before him. President Clinton’s picks, for instance, had an 86-vote margin of victory on average and President Obama’s selections during an ever-increasing polarized environment had a 32-vote margin of victory.
As the chart above illustrates, Trump had smaller margins of approval of his selections to the Supreme Court than any modern president — all razor thin wins. But a win is a win with the lifetime appointment at the end.
Maybe the tight margin was because Trump’s judges were more controversial. That’s not to say in other cases the nominees were perceived to be less ideologically extreme. As I mentioned above, although atypical to lose a confirmation vote, President Reagan did. President Reagan’s nominee Justice Robert Bork was defeated by 16 votes. However, the chart does show a possible growing partisan divide in confirmation votes. Or it could be the political environment has changed in Washington. For example, Justice Scalia — one of the most prominent conservative jurists of our time was confirmed 98–0 and Justice Breyer was confirmed 87–9.
Table 2. Supreme Court Nominee Votes/Action from President Ford through President Trump
Now, President Biden has a chance to nominate a justice to replace a liberal/moderate justice in Stephen Breyer who was initially appointed by President Bill Clinton.** It will be a hold more so than moving the court ideologically one way or another from its newly formed conservative majority. The new conservative majority was set as a result of President Trump choosing Justice Gorsuch in 2017 plus two others, instead of Obama getting Garland confirmed.
President Biden announced he was going to choose a Black woman to replace Justice Breyer. So how in this highly politicized environment will the process play out? Because President Biden has yet to nominate a person, the current tension between the parties is that the Republicans are accusing President Biden of playing identity politics by stating he will choose a Black woman. However, this appears more a perfunctory opening salvo by the opposition because this is not unusual and their is no nominee to criticize yet. For instance, just two years ago President Trump proclaimed his Supreme Court nominee of the vacancy left by Justice Ruth Bader Ginsburg would be a woman. Unless there was a case of massive amnesia, this is just a political tit- for-tat. So, until there is a record of an actual nominee that could be potentially weaponized by the members of the minority in Senate, these will be the types of small skirmishes that will occur.
Senate Republicans are gearing up, but using the elements analyzed by John Massaro, a Biden nominee stands a good chance of being approved even with a relatively low approval rating. President Biden still has three years to go in his term and although a razor thin majority, the Democrats control the U.S. Senate. Things to watch out for will be any longterm fallout after the recent interparty fight over the failure to end the 60-vote filibuster for voting rights. If this or other issues — like a perceived liability of supporting an unpopular president’s selection in their state— linger with the more conservative members of the Democratic conference resisting a more ideological liberal judge, then the President could have a more difficult time. Lyndon Johnson faced that same issue from Southern Democrats in his failed attempt to elevate Justice Fortas to Chief Judge. That ideological opposition within Johnson’s party, the fact he was a lame duck, and coupled with his Administration’s mismanagement of the confirmation process ultimately doomed the Fortas’s chances.
However, until we know exactly who will be nominated by the President the picture will still be cloudy, but given the timing and circumstances, President Biden has a strong hand where President Obama did not in the case of Merrick Garland.
However, until we know exactly who will be nominated by the President the picture will still be cloudy, but given the timing and circumstances, President Biden has a strong hand where President Obama did not in the case of Merrick Garland.
One thing is clear: as Professor Massaro notes “…the Senate’s action in refusing to confirm some future Supreme Court nominee will be, as it has always been, supremely political.” Senator McConnell recognizes this ultimate truth and coupled with the right ingredients — timing, ideology, and management — has all the making for a successful process. Pure politics allowed Senator McConnell to overcome the inconsistency of arguing against Garland in an election year while turbocharging the Barrett confirmation in the next election — it was supremely political.
Therefore, in this current political environment President Biden should follow the advice of the Jedi in Star Wars and use the Force. But in this case the blueprint was created by Republican Leader Mitch McConnell. So, in this case, may the Mitch be with you, Mr. President.
*An example of presidential mismanagement was at the end of President Lyndon Johnson’s term where he oversaw two failed nominations in Supreme Court Justice Abe Fortas as Chief Justice and Clement F. Haynsworth, Jr.’s nomination to the Court. The president and his administration made strategic blunders in failing to cultivate relationships with senators that helped doom both when ethical concerns were raised.
**Although this isn’t always how it works out. Of course, judicial ideology of justices and president selection isn’t something that is easy to measure. It was President Eisenhower — a Republican who selected Republican Earl Warren as Chief Justice. The “Warren Revolution” was one of the most liberal Courts in the history of the nation.
