JUDICIAL POLITICS: THE DEVOLUTION OF THE THIRD BRANCH OF GOVERNMENT.
President Gerald Ford, the only president never to be elected to either that office or the vice presidency, filled a Supreme Court vacancy, created by the retirement of Justice William O. Douglas--who Ford, while in Congress, had tried to impeach (2)--while his successor, President Jimmy Carter, never got an opportunity to fill a Court vacancy. Thus far President Trump, just two years into his presidency, has had as many Supreme Court vacancies to fill--two--as did Presidents Bill Clinton and Barack Obama during each of their presidencies, and both served two terms.
Things have certainly changed since the 1975 nomination of Justice Paul Stevens. Ford picked Stevens the day after the retirement letter from Douglas was sent to the White House. (3) As the late deputy attorney general to Ford, Harold Tyler, recalled, "[t]he President sent the nomination over right away and as I think I told you off the record, 19 days after he sent the nomination over, the Senate confirmed Justice Stevens." (4)
Stevens would not be the only liberal justice appointed by a Republican president. When William J. Brennan Jr. got the call to visit President Dwight Eisenhower he "thought nothing of the request and even stopped at Union Station for a hot dog to bide his time, according to Robert M. O'Neil, who would become one of Brennan's first law clerks. 'He didn't expect to get dinner at the White House,' O'Neil said." (5) Brennan was confirmed as an associate justice on a 1957 voice vote, with the only audible dissent from Senator Joseph McCarthy (R., Wis.), and it was reported that "Brennan later said no one in the Eisenhower administration asked him a single question about his politics or judicial philosophy." (5)
To be sure, there have been controversial Supreme Court nominees in the modern age, most notably under President Richard Nixon.
His first nominee, Judge Clement Haynsworth, "was rejected 55 to 45, with 17 Republican senators voting no. It was the tenth time in the nation's history that a Supreme Court nominee had been rejected." (5)
Following that rejection, Nixon's second unsuccessful Court nomination of Judge G. Harrold Carswell prompted one of the more famous defenses of all time, when Senator Roman Hruska (R., Neb.)--the top Senate Judiciary Republican--asked: "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?" (5)
As one article noted, "[t]he Senate rejected Judge Carswell after reporters and civil rights activists uncovered a speech in which he endorsed racial segregation and white supremacy as a legislative candidate in Georgia in 1948." 9 The vote was 51-45. (10)
Despite those failed nominations, deeply politicized at the time, most would point to the 1987 nomination by President Ronald Reagan of" Judge Robert Bork as launching the current era of Court politicization. (11)
Bork had worked for Nixon, and "fired Special Prosecutor Archibald Cox after the attorney general and deputy attorney general refused President Nixon's firing order and quit." (12) As a Court nominee, he had a very conservative record:
He opposed the Supreme Court's one man, one vote decision on legislative apportionment. He wrote an article opposing the 1964 civil rights law that required hotels, restaurants and other businesses to serve people of all races. He opposed a 1965 Supreme Court decision that struck down a state law banning contraceptives for married couples by claiming there is no right to privacy in the Constitution. And he opposed Supreme Court decisions on gender equality. (13)
And yet, despite an all-out assault on his record, "two months later, when the confirmation hearings began, public opinion still was on Bork's side."! (14) He came across terribly in the hearings, however: "In the end, Bork was defeated by a vote of 58 to 42, the largest margin in history." (15)
Reflecting on Bork, Andrew Cohen would write in The Atlantic:
The relentless honesty and arrogant mien of Robert Bork, who has died at 84, during his unforgettable 1987 Supreme Court nomination hearing resulted in two very important things for this nation. First, it precluded the ideologue from becoming a life-tenured justice, which has meant over the intervening 25 years many saving graces for progressives and many bitter disappointments for conservatives. Second, it changed (forever, I suspect) the way judicial confirmation hearings unfold, by encouraging earnest nominees to say to the Senate Judiciary Committee nothing at all candid, specific, or profound about their judicial philosophies or views of the law. (16)
Prior to Kavanaugh, the most-superheated nomination process was that of Clarence Thomas in 1991 by President George H.W. Bush. Thomas was accused by Professor Anita Hill, a former employee, of sexual harassment. He had the support of conservative groups, and a book by David Brock (17) assisted in tearing down Hill. (18) In his outrage, feigned or otherwise, Thomas famously got the better of his inept Senate Judiciary inquisitors:
This is a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity-blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order, this is what will happen to you, you will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree. (19)
Democrats might forget that Senate Judiciary Committee Chair Joe Biden (D., Del.), the future vice president, made things worse for Hill: "Biden's colleagues weren't the only ones to mistreat Hill. He also posed questions designed to humiliate her." (20) Thomas was confirmed by a 52-48 margin. (21) He would not have been confirmed without Democratic support: "Eleven Democrats joined 41 of the 43 Republicans in supporting him." (22)
As the New York Times reported, "After three days of televised inquiry into an accusation that Clarence Thomas had sexually harassed an aide, Americans still favor the judge's confirmation to the Supreme Court by a ratio of 2 to 1, according to the latest New York Times/CBS News Poll." (23) Yet the spectacle was also credited with giving rise to the "Year of the Woman" in the 1992 elections. (24)
Yet Democrats showed no real fight in learning the lessons of the Thomas nomination. (25)
One can argue the U.S. Supreme Court's transformation into overt-partisanship occurred not with the 2016 failure of a Republican Senate majority to confirm centrist Merrick Garland to fill the seat of the deceased Justice Antonin Scalia, (26) but in 2005, when 22 Senate Democrats defected and voted, in a 78-22 landslide, to confirm the nomination by President George W. Bush of 50-year-old John Roberts as chief justice of the U.S. Supreme Court. (27) Many gave effusive speeches on his behalf, including Senator Patrick Leahy (D., Vt.), the Democratic leader on the Senate Judiciary Committee. Leahy burbled that "Judge Roberts is a man of integrity. I take him at his word that he does not have an ideological agenda.'' (28)
Senator Patty Murray (D., Wash.) was among those who had credited the Thomas spectacle with her decision to seek her Senate seat in 1992. As a Washington Post article recounted:
In 1991, Patty Murray sat in her living room watching Anita Hill testify during the Senate confirmation hearings for Supreme Court nominee Clarence Thomas. Murray, then a Washington state senator, was appalled by what she saw--an all-male Senate Judiciary Committee hurling insensitive questions at Hill about Thomas's alleged sexual harassment. (29)
Yet, in giving a floor speech on Roberts' behalf, Murray effused that "Judge Roberts has a healthy regard for precedent and intends to apply a thoughtful approach to interpreting the law." (30)
Twenty members of the Democratic Caucus also defected from any effort, in January 2006, to filibuster the second Court nomination by President George W. Bush, naming Samuel Alito as an associate Supreme Court justice. (31)
During the Obama Administration, Senate Republicans, even while in the minority, largely did not need to threaten to filibuster to block judges, as Leahy allowed them to stop President Obama's nominees by simply refusing to sign what was called a "blue slip" for any nominee originating from their home state. As Eleanor Clift noted, "Leahy never once deviated from the blue slip tradition, and 18 Obama appointees never got hearings. All but one was a woman or a minority, part of Obama's commitment to bring more diversity to the courts." (32)
Upon President Trump taking office, Senate Judiciary Chairman Charles Grassley (R., Iowa) abandoned this tradition, despite Leahy's guarantees--based upon their 30-year-relationship--he would not. (33) And the vacancies Leahy, and obstructionist Republicans, had not allowed Obama to fill were quickly filled by Trump. (34) As a consequence, the Washington Post noted in July 2018, upon the confirmation of a 39-year-old ultraconservative to serve on the U.S. 5th Circuit Court of Appeals, "the Trump administration has successfully pushed through the Senate the largest number of federal judges than any recent president in his first two years." (35)
This has been facilitated by the improvident decision of former Senate Democratic Leader Harry Reid (D., Nev.) to abrogate the filibuster rule for all judicial nominees except for those nominated for the Supreme Court (which did nothing to ameliorate the obstruction Leahy allowed), (36) a limitation Republicans then easily swept aside. (37)
Nor, thanks to application of the "Ginsburg Rule," are we allowed to even discern what Justices' views are as part of the Senate Judiciary Committee's vetting. (38) As Andrew Cohen quantified it for the New York Times in 2005: "Number of times during Senate Judiciary Committee hearing in April 2003 that federal appeals court nominee John G. Roberts Jr. invoked name of Justice Ginsburg in refusing to give specific answers to questions about his judicial philosophy or particular cases: 7." (39)
After the Thomas nomination fight, the New York Times reported "[a] number of senators, law professors, historians and others have urged that the process be reformed. That would be hard to accomplish in the most harmonious times, and relations between the White House and Congress have turned rancid in recent days." (40) That was in 1991.
In words that are poignant today, "Senator Nancy Landon Kassebaum of Kansas, the only woman on the Republican side of the aisle, voted for judge Thomas but acknowledged that he would 'live under a cloud of suspicion he can never fully escape,' even on the Court." (41)
That does not sound materially different than the words of Senator Jeff Flake (D., Ariz.) in supporting Kavanaugh after the hearing in which Professor Ford testified against him: "I wish that I could express the confidence that some of my colleagues have conveyed about what either did or did not happen in the early 1980s, but I left the hearing yesterday with as much doubt as certainty." (42)
Beyond the question of whether the sexual misconduct accusations against Kavanaugh were true, consider the devolution of the Court (and judicial nominees generally). (43) As the New York Times opined on Kavanaugh, "[h]is open contempt for the Democrats on the committee also raised further questions about his own fair-mindedness, and it served as a reminder of his decades as a Republican warrior who would take no prisoners." (44) With the filibuster rule no longer applicable, we can expect more overt partisans to become federal judges so long as they can command 50 Senate votes. (45)
Where do we go from here? Further downhill, it would appear, if the March 2019 confirmation of a 37-year-old, Allison Rushing, for the U.S. Court of Appeals (4th Cir.) was any indication --Rushing was formerly tied to a hate group, but every Republican present voted for her while every Democrat opposed her. (46) Concurrent with that success, majority Senate Republicans unveiled a new "nuclear option" proposal to abrogate the filibuster rule for all judicial nominees. (47)
(1) WASH. APR 5(g) (the author's own oath of admission to practice).
(2) See Marjorie Hunter, Ford Asks Douglas's Ouster. N.Y. TIMES, Apr. 16. 1970, at A1 ("The House Republican leader. Gerald R. Ford, touched off an angry floor debate tonight by suggesting that Justice William O. Douglas might have had ties with gambling and underworld figures,").
(3) William Michael Treanor, Introduction: The Jurisprudence of Justice Stevens Symposium, 74 FORDHAM L. REV. 1557, 1558 (2006),
(5) Joan Biskupic, Justice Brennan. Voice of Court's Social Revolution. Dies. N.Y, TIMES (July 25, 1997). https://www.washingtonpost.com/archive/pohtics/1997/07/25/justice-brennan-voice-of-courts-social-revolution-dies/8b858d77-0434-4782-a362-9785ed84f326/?utm_term=.574b5a2d0d4h.
(7) Alfonso A. Narvacz. Clement Haynsworth Dies at 77; Lost Struggle for High Court Seat, N.Y. TIMES, Nov. 23, 1989. at D21 ("The battle pitted the Nixon Administration and conservative Republicans who favored Judge Haynsworth against the A.F.L,-C,I,O., the National Association for the Advancement of Colored People and the Leadership Conference on Civil Rights, an affiance of 125 religious, labor, welfare and civil rights groups.").
(8) Richard Pearson. Sen. Roman Hruska Dies at 94. WASH. POST (Apr. 27. 1999). https://www.washingtonpost.com/archive/local/1999/04/27/sen-roman-hruska-dies-at-94/633188ba-989e-4236-ae21-d.3c6.517749b3/?utm_term=.19f4ef2ab587.
(9) G. Harold Carswell Dies. WASH. POST (Apr. 2. 1992), https://www.washingtonpost.com/archive/local/1992/08/01/g-harrold-carswell-72-dies/09c33cbf-cdae-4468-befc-2ae54f66dbbe/?utm_term=.d35a45321cfa.
(10) Id. Carswell would resign from the 5th U.S. Circuit Court of Appeals, run unsuccessfully for the U.S. Senate in Florida, and then "'[i]n 1976. he pleaded no contest and was fined $100 on a battery charge for making homosexual advances to an undercover Tallahassee police officer in a men's room at a shopping mall." Id. After Carswell was rejected by the Senate. "Minnesota Republican Harry Blackmun became the President's new choice. After just a few hours of deliberation, the Senate confirmed Blackmun to the Court by a lopsided vote of 94-0." Benjamin Pomerance, Justice Denied: The Peculiar History of Rejected United States Supreme Court Nominees. 80 ALB. L. REV. 627. 720 (footnotes omitted). (11) See Amelia Thomson-DeVcaux & Oliver Roeder, Is The Supreme Court Faring A Legitimacy Crisis?, FiveThirty Eight (Oct. 1. 2018, 6:00 A.M.). https://fivethirtyeight.com/featuros/is-the-supreme-court-facing-a-legitimacy-crisis/.
(12) Nina Totenherg, Robert Bork's Supreme Court Nomination 'Changed Everything, Maybe Forever', NPR (Dec. 19. 2012. 4:33 P.M.), https://www.npr.org/sections/itsallpolitics/2012/12/19/167645600/robert-borks-supreme-court-nomination-changed-everything-maybe-forever.
(16) Andrew Cohen, The Sad Legacy of Robert Bork. ATLANTIC (Dec. 19, 2012), https://www.theatlantic.com/polit.ics/archive/2012/12/the-sad-legacy-of-robfrt-bork/266456/.
(17) Alex Kuczynski & William Glaherson, Book Author Says He Lied in His Attacks on Anita Hill in Bid to Aid Justice Thonms. N.Y. TIMES. June 27, 2001, at A18.
(18) Thomas may have harassed others. See Jill Abramson, Do You Believe Her Now?, N,Y. MAG. (Feb. 19, 2018), http://nymag,com/intemgencer/2018/02/the-case-for-impeaching-clarence-thomas.html. ("Thomas's inappropriate behavior--talking about porn in the office, commenting on the bodies of the women he worked with--was more wide-ranging than was apparent during the sensational Senate hearings, with their strange Coke-can details.")
(19) Michael S. Rosenwald, A high-tech lynching': How Brett Kavanaugh took a page from the Clarence Thomas playbook. WASH. POST (Sept. 27. 2018). https://www.washingtonpost.com/history/2018/09/25/high-tech-lynching-how-clarence-thomass-fury-.saved-his-supreme-court-nomination/?utm_term=.e7cdd62aflac. Over a quarter-century later. Judge Kavanaugh--though a privileged white male--hewed to the same histrionic script, as recounted by one writer:
A ranting Kavanaugh launched angry, evidence-free charges against Senate Democrats. "The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at Borking," he said, using a partisan term invented by Republicans to complain about ideological scrutiny of an extreme judicial nominee. "This whole two-week effort has been a calculated and orchestrated political hit, fueled by pent-up anger over President Trump in the 2016 election."
Jonathan Chait. Why Brell Kavanaugh's Hearings Convinced Me That He's Guilty, N.Y. MAG. (Sept. 27, 2018), http://nymag.com/inteffigencer/2018/09/why-brett-kavanaughs-hearings-convinced-me-that-hes-guilty.html.
(20) Joan Vennochi, Joe Biden's Anita Hill problem, BOSTON GLOBE (Sept. 26. 2018), https://www.bostonglobe.com/opinion/2018/09/26/joe-biden-anita-hill-problem/P50cz8sY0wSNr4ByVWna5M/story.html.; see also Alexander Burns & Jonathan Martin, Biden Is Preparing for 2020. Can He Overcome the Hill-Thomas Hearings?, N.Y. TIMES (Oct. 1, 2018). https://www.nytimes.com/2018/10/01/us/politics/biden-2020-anita-hill-kavanaugh.html. ("Publicly, Mr. Biden has expressed regret about the way the Hill hearings unfolded; privately, he has also described it as unfair that Ms. Hill continues to hold him responsible for her rough treatment in the Senate.") Although, in those pre-Twitter days, Hill was at least not mocked by the president or his son. See Martha Ross, Kimberly Guilfoyle slays quiet as Donald Trump Jr. mocks Christine Blasey Ford, MERCURY NEWS (Sept. 29, 2018, 7:03 P.M.). https://www.mercurynews.com/2018/09/28/kimberly-guilfoyle-didnt-join-donald-trump-jr-s-twitter-attacks-on-christine-blasey-fords-credibility/. (when Professor Christine Blasey Ford brought forth sexual assault allegations against Judge Kavanaugh, "Trump Jr. mocked Blasey Ford by jokingly comparing the alleged attack to a high school boy hoping a classmate would be his girlfriend.").
(21) R.W. Apple, Jr.. The Thomas Confirmation: Senate Confirms Thomas, 52-48, Ending Week of Bitter Battle: 'Time for Healing,' Judge Says, N.Y. TIMES, Oct. 16. 1991, at A1.
(22) Id. At one point, Thomas would famously go a fuU decade without asking a question during oral argument. See Garrett Epps, Clarence Thomas Breaks His Silence, ATLANTIC (Feb. 29, 2016), https://www.theatlantic.com/politics/archive/2016/02/clarence-thomas-supreme-court/471582/. (a law professor writing that "his sudden loquacity comes barely two weeks after his comrade in arms, Antonin Scalia. died.").
(23) Elizabeth Kolbert, The Thomas Nomination: Most in National Survey Say Judge Is the More Believable, N.Y. TIMES (Oct. 15, 1991), at A1 (Of Professor Hill, "Forty-
six percent of those surveyed said they had an 'unfavorable' opinion of her. while only 17 percent said they had a 'favorable' view.")
(24) See, e.g., Michael S. Rosenwald, No Women Served on the Senale Judiciary Committee in 1991. The Ugly Anita Hill Hearings Changed That., WASH. POST (Sept. 18, 2018), https://www.washingtonpost.com/history/2018/09/18/no-women-served-senate-judiciary-committee-ugly-anita-hill-hearings-changed-that/?utm_term=.9431c8d714a.3.
(25) President Clinton even deferred to minority Senate Republicans in choosing justices. See Linda Greenhouse, The Supreme Court: The Decision; A Nominee Deemed Politic, Not Political, N.Y. TIMES, May 14, 1994. at AlO (in choosing Justice Breyer over Interior Secretary Bruce Babbitt due to some Republican opposition to Babbitt, even though "no one in the White House or in Congress thought this opposition would be serious enough to defeat a Babbitt nomination if Mr. Clinton chose to make it."). Even with a Senate Democratic supermajority. President Obama reportedly wavered on appointing Justice Kagan: "Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president."). Peter Baker & Jeff Zeleny, Obama Picks Kagan, Scholar but Not Judge. for Court Seal, N.Y. TIMES (May 10, 2010), http://archive.nytimes.com/www.nytimes.com/2010/05/11/us/politics/11court.html.
(26) See Amber Phillips. Why Milch McConnell is Bragging about Holding up Merrick Garland from the Supreme Court, Two Years Later, WASH. POST (Apr. 1.5, 2018), https://www.washingtonpost.com/news/the-fix/wp/2018/04/0.5/why-mitch-mcconnell-is-bragging-about-holding-up-merrick-garland-from-the-supreme-court-two-years-later/'?utm_term=.cf6e.50887923. ("Senate Majority Leader Mitch McConnell (R-Ky.) made the riskiest decision of his political career in 2016: to block a vote on President Barack Obama's nominee for the Supreme Court.").
(27) See Charles Babington & Peter Baker. Roberts Confirmed as 17th Chief Justice. WASH. POST (Sept. 30, 2005), http://www.washingtonpost.com/wp-dyn/content/article/200.5/09/29/AR2005092900859.html.
(28) Press Release. Statement of Senator Patrick Leahy (Sept. 22, 2005), retrieved from https://www.judiciary.senate.gov/imo/media/doc/leahy_statement_09_22_05.pdf.
(29) Rosenwald, supra note 23.
(30) Press Release, Statement of Senator Patty Murray on Judge John Roberts (Sept. 28, 2005). retrieved from https://www.murray.senate.gov/public/index.cfm/newsrek'ases?ID=8571F38D-B64A-4007-9F4B-33F938D4FB70.
(31) Anti-Alito Filibuster Soundly Defeated. CNN (Jan. 30, 2006, 7:56 P.M.), http://www.cnn.com/2006/PdLrnCS/01/30/alito/. "Justice Alito also won the support of four Democrats: Robert C. Byrd of West Virginia, Ben Nelson of Nebraska, Tim Johnson of South Dakota and Kent Conrad of North Dakota." David Stout, Alito Is Sworn In as Justice After 58-42 Vote to Confirm Him. N,Y, TIMES (Jan. 31, 2006), https://www.nytimes.com/2006/01/31/politics/politicsspeciall/alito-is-sworn-in-as-justice-after-5842-vote-to.html. Alito is arguably the most conservative justice. One scholar, looking at a case in which the Court struck down Florida's death penalty approach, wrote that "Justice Alito's willingness to stand alone in upholding a death penalty regime that the rest of the Court concluded was unconstitutional--highlights one fact that has become clear in Ahto's first decade on the Court: there is no one to his right on the current Court." Brianne J. Gorod, Sam Alito: The Court's Most Consistent Conservative. YALE L.J. F. 362 (2016) www.yalelawjournal.com/forum/sam-ahto-the-courts-most-consistent-conservative. (Jan. 24, 2017) (noting also Alito's "scathing dissents that reflect his firm conservative ideological convictions."). Yet, one 2017 quantification found Thomas the most conservative justice. See Oliver Rocder, Just How Conservative Was Neil Gorsuch's First Term?. Five Thirty Eight (July 25, 2017, 6:00 A.M.), https://fivethirtyeight.com/features/just-how-conservative-was-neil-gorsuchs-first-term/.
(32) Eleanor Clift, The Unheralded Death of the Blue Slip. DAILY BEAST (Sept. 26, 2017, 6:56 A.M.) https://www.thedailybeast.com/the-unheralded-death-of-the-blue-slip.
(33) Id. This makes somewhat ironic the shouted remonstrance to Democrats from a red-faced Sen. Lindsey Graham (R., S.C.) amidst the Kavanaugh hearing: "Boy. you all want power, God, I hope you never get it. I hope the American people can see through this sham... You had no intention of protecting Dr. Ford: none." Lindsey Bever. 'Look at me when I'm talking to you!': Crying Protester Confronts Jeff Flake in Capitol Elevator. WASH. POST (Sept. 28, 2018), https://www.washingtonpo.st.com/politics/2018/09/28/look-me-when-im-talking-you-crying-protester-confronts-jeff-flake-capitol-elevator/?utm_term=i5fea7119559.
(34) President Trump acknowledged this with typical mendacity:
President Trump mockingly thanked his predecessor former President Obama for leaving so many judicial posts vacant despite a Republican-controlled Senate slowing down confirmations during the last two years of the Obama administration. "When I got in, we had over 100 federal judges that weren't appointed," Trump said during a speech in Ohio on Thursday, "I don't know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that?"
Morgan Gstalter, Trump Thanks Obama for Leaving so many Judicial Vacancies, THE HILL (Mar. 29, 2018, 3:29 P.M.), https://thehill.com/homenews/administration/380878-trump-blasts-obama-for-leaving-so-many-judicial-vacancies.
(35) Deanna Paul, Trump Promised to Remake the Courts. He's Installing Conservative Judges at a Record Pace, WASH, POST (July 19, 2018), https://www.washmgtonpost.com/news/powerpost/wp/2018/07/19/trump--promised-to-remake-the-courts-hes-installing-conservative-judges-at-a-record-pace/?utm_term=.bea88e6a.5fc5.
(36) See Paul Kane, Reid, Democrats trigger 'nuclear' option; eliminate most filibusters on nominees, WASH. POST (Nov. 21, 2013), https://www.washmgtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cre8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.9d4be1184fee.
(37) See Majita Gajanan, Why Republicans Are Suddenly Thanking Harry Reid for a 2013 Tweet About Filibuster Reform, TIME (June 28. 2018), http://time.com/5324365/harry-reid-filibuster-reform-supreme-court/.("Reid's "nuclear option" did not extend to Supreme Court nominees at the time, though McConnell used the precedent of Reid's decision to lower the vote threshold for the confirmations of Justice Neil Gorsuch last year.").
(38) Under the "the so-called Ginsburg Rule, a term used in confirmation hearings to argue that when answering questions from the senators, nominees must avoid offering 'hints.' 'forecasts' or 'previews'--as Justice Ruth Bader Ginsburg put it in her confirmation hearing--into how they might rule on the bench." Lori Ringhand & Paul M. Collins. Jr.. The 'Ginsburg Rule' is Not an Excuse to Avoid Answering the Senate's Questions, "WASH. POST (July 9, 2018). https://www.washingtonpost.com/opinions/answer-the-senates-questions-judge/2018/07/09/31cfb24c-83b0-lle8-8589-5bb6b89e3772_story.html?utm_term=.1559e4b6dc0b, But two law professors suggest this is really a misnomer: "Ginsburg did avoid responding to some questions in her hearing, but she also, in fact, answered others substantively. Judicial nominees have done this for decades, but it's only recently that nominees have abused this "rule" to avoid answering questions in any meaningful way." Id. (emphasis added).
(39) Andrew Cohen, John Roberts, by the Numbers. N.Y. TIMES (Sept. 3, 2005), https://www.nytimes.com/2005/09/03/opinion/john-roberts-by-the-numbers.html. Before he was confronted with sexual misconduct allegations. USA TODAY noted that "[f]or two days that went well into the night, Kavanaugh offered a master class in answering the questions he wanted to hear, rather than the ones actually asked." Richard Wolf, Supreme Court nominee Brett Kavanaugh tiptoes through legal minefields on way to confirmation, USA TODAY (Sept. 8, 2018, 1:02 P.M.). https://www.usatoday.com/story/news/politics/2018/09/08/brett-kavanaugh-supreme-court-nominee-avoids-legal-minefields/1225161002/. After the misconduct allegations came forward, Kavanaugh went a step further, contemptuously refusing to answer even germane questions:
The worst moment was his confrontation with Sen. Amy Klobuchar (D-Minn.) who questioned him about blackout drinking. She explained that she understood alcohol abuse because her father was an alcoholic. Have you ever blacked out? she asked. He sneered in response, "Have you?" It was a moment of singular cruelty and disrespect. One saw a flash in the exchange with Klobuchar the same sense of entitlement, cruelty and lack of simple decency that Christine Blasey Ford allegedly experienced way back when, the memory seared in her brain of two obnoxious teens laughing at her ordeal.
Jennifer Rubin. The most tvlling moment: Kavanaugh goes after Sen. Klobuchar, WASH. POST (Sept. 27. 2018), https://www.washingtonpost.com/news/opmions/wp/2018/09/27/the-most-telling-moment-kavanaugh-goes-after-sen-klobuchar/?utm_term=.ee58edc9b226. (Kavanaugh did firmly establish his love of beer, even at one point, "during an odd. unattractive exchange with Senator Sheldon Whitehouse, a Rhode Island Democrat," challenging, mano a mano. the senator's own affection for beer: '"Do you like beer. Senator, or not?'"): Frank Bruni. Brett Kavanaugh Loves His Beer. N.Y. TIMES (Sept. 29, 2018), https://www.nytimes.com/2018/09/29/opinion/brett-kavanaugh-beer-pohtics.html. (President Trump, in a press conference, acknowledged surprise "at how vocal he was about the fact that he likes beer, and he's had a little bit of difficulty, I mean he talked about things that happened when he drinks--this is not a man that said... that he was perfect with respect to alcohol.") Chris Cillizza. Donald Trump just Veered WAY Off Message on Brett Kavanaugh's Drinking (CNN. Oct. 1, 2018, 3:29 P.M.). https://www.cnn.com/2018/10/01/politics/donald-trump-brett-kavanaugh-drinking/index.html.
(40) Apple, supra note 20,
(42) Press Release, Ariz, U,S. Sen. Jeff Flake, Flake Statement on SCOTUS Nomination (Sept. 28, 2018).
(43) Among President Trump's judicial nominees;
Judge L. Steven Grasz of the Court of Appeals for the Eighth Circuit was rated by the American Bar Association as "not qualified" before the Senate approved his nomination last year. Judge John K. Bush of the Court of Appeals for the Sixth Circuit, whom the Senate also confirmed last year, mused about politics in blog posts written under a pseudonym. One of Judge Bush's missives cited abortion alongside slavery as "the two greatest tragedies in our country." Another suggested that a reader of the blog from Kenya was a relative of Mr. Obama's. Judge Kyle Duncan of the Court of Appeals for the Fifth Circuit, who was confirmed this year, once wrote that the Supreme Court's landmark decision establishing a constitutional right to same-sex marriage "imperils civic peace."
Thomas Kaplan, Trump Is Pulling Indelible Conservative Slamp on Judiciary. N.Y. TIMES (July 31. 2018), https://www.nytmies.com/2018/07/31/us/politics/trump-judges.html.
(44) Editorial, Why Brett Kavanaugh Wasn't Believable. N.Y. TIMES (Sept. 27. 2018), https://www.nytimes.com/2018/09/27/opinion/why-brett-kavanaugh-wasnt-believable.html Another writer noted:
Alternating between weeping and yelling, he exemplified the conservative's embrace of bluster and petulance as rhetorical tools. Going on about his harmless love of beer, spinning unbelievably chaste interpretations of what was, by all other accounts, his youthful habit of blatant debauchery, he was as Trumpian as Trump himself, louder than the loudest on Fox News.
Doreen St. Felix, The Ford-Kavanaugh Hearing Will Be Remembered as a Grotesque Display of Patriarchal Resentment, NEW YORKER (Sept. 27, 2018), https://www.newyorker.com/culture/cultural-comment/the-ford-kavanaugh-hearmgs-will-be-remembered-for-their-grotesque-display-of-patriarchal-resentment, (Republican Sen. Flake acknowledged that Kavanaugh's "interaction with the members was sharp and partisan and that concerns me.") Tal Axelrod, Flake on 'sharp and partisan' Kavanaugh remarks: 'We can't have this on the court: THE HILL (Oct. 2, 2018. 12:23 P.M.). https://thehill.com/homenews/senate/409466-flake-kavanaugh-remarks-were-sharp-and-partisan. (Even before the sexual misconduct allegations publicly aired against Kavanaugh, the regard of women for the U.S. Supreme Court hit a 13-year low.); Justin McCarthy, Women's Approval of SCOTUS Matches 13-Year Low Point. GALLUP (Last Visited Sept. 28. 2018), https://news.gallup.com/poll/243266/women-approval-scotus-matches-year-low-point.aspx?utm_source=twitter&utm_medium=o_social&utm_term=&utm_content=c&utm_campaign=.
(45) Or, perhaps, even if they cannot marshal 50 votes. In a touch of the surreal. Sen. Graham suggested that if Kavanaugh was rejected by the Senate he should be re-nominated. See Griffin Connolly, Lindsey Graham Has a Fallback Plan if Kavanaugh Goes Down. ROLL CALL (Oct. 2. 2018. 8:33 A.M.). https://www.rollcall.com/news/politics/lindsey-graham-fallback-plan-kavanaughgoes. To quote:
"I would re-nominate him and I would take this case to the American people and I'd ask voters in Indiana, in Missouri, in North Dakota and other places where Trump won--saying who he would nominate if he got to be president--and see if the voters want to appeal the verdict of their senator." Graham said.
Id. It is unclear as to how such a plebiscite would work.
(46) Eli Rosenberg & Deanna Paul. The Senate Just Confirmed a Judge Who Interned at an Anti-LGBTQ Group. She'll Serve for Life. WASH. POST (Mar. 6, 2019). https://www.washingtonpost.com/dc-md-va/2019/03/06/senate-just-confirraed-judge-who-interned-an-anti-lgbtq-group-shell-serve-life/?utm_term=.a253fl6dba04.
(47) Burgess Everett & Marianne Levine, McConnell preps new nuclear option to speed Trump judges. POLITICO (Mar. 6. 2019, 7:45 a.m.). https://www.politico.com/story/2019/03/0G/trump-mcconnell-judges-1205722.
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|Publication:||Loyola Journal of Public Interest Law|
|Date:||Mar 22, 2019|
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