Supreme Court appointment politics appear to be in disarray. Republicans clearly stole this last seat. And Democrats are not at all sure how to react. Some Dems want to filibuster until the filibuster is taken away; Other Dems wishfully believe that the filibuster could actually work; Yet other Dems want to “preserve” the filibuster for some later fight; Still other Dems think we need to grill the nominee to find the reason for a filibuster in the first place; A different group of Dems think the threat of a filibuster is a card to be played to gain unspecified concessions.
Against all of this confusion and angst, there remains one unremarked upon truth — Republicans virtually never have, and never would now, confirm a Democratic Supreme Court nominee. That’s it.
Here is a fascinating question — when was the last time that a Republican Senate confirmed the Supreme Court nomination from a Democratic President? Answer:
You have to go back to December 1895, when a Senate with a plurality of Republicans approved President Grover Cleveland’s nomination of Rufus Peckham to the Supreme Court in a voice vote. At that time, the GOP had 44 Senate seats and the Democrats had 40 seats, with 6 other Senators belonging to other parties.
121 years ago!! You see, when Democrats talk and genuflect to norms, traditions, history and accommodation — they are only talking to themselves. Republicans have no freaking idea what Dems are even talking about.
The supposedly “bipartisan” framework for approving Supreme Court justices is entirely a matter of internal Democratic policy:
In fact, all 13 of the Supreme Court nominations since 1945 that were eventually approved by an opposing party [the Democrats] in the Senate were made by Republican presidents. Familiar names such as Earl Warren, William Brennan and Potter Stewart were Eisenhower nominees approved by a Democratic-controlled Senate.
Every such nomination since World War II, and it goes back before that! Even Clarence Thomas got 11 Democratic votes to get him over to the required, non-filibustered total of 52 votes. Dems totaled over 21% of his vote. And, 22 of Roberts’ 78 votes, or 28%, came from Democrats.
By contrast, Obama’s last confirmed Justice — Elena Kagan — received only five unneeded Republican votes — and of that group, only two — Senators Graham and Collins — remain in the Senate. (Ms. Kagan is a graduate of Princeton, Oxford and Harvard Law School, former professor at the University of Chicago Law School and Harvard Law School, former White House Counsel, the first female dean of Harvard Law School and a former U.S. Solicitor General.)
It is this history that truly explains the Merrick Garland episode — Republicans could not confirm any Democratic nominee. Republicans controlled the Senate, and so no nominee could be confirmed unless Republican votes did it. Mitch McConnell wasn’t worried that Republicans were going to confirm the first Democratic nominee in 121 years. McConnell knew that he had, at most, two remaining Republican votes to confirm anyone. Faced with this embarrassing truth, McConnell did the classic version of “inflate the problem” — he pretended that the whole thing was about a made-up, and contradicted, principle: no Supreme Court confirmations in a President’s final year. And then he shut it down so that there would be no interviews, no hearings and no (embarrassing) votes.
This is where we always were and still are now: Republicans will not confirm any Democratic nominee, and Democrats agonize over norms, tactics and appearances (even when their votes are irrelevant).
The important take-away from all of this is that while Democrats alternately clash and congratulate themselves over the dead sixty vote filibuster, fifty-one votes continues to be the Republicans’ de facto filibuster. One day soon (hopefully), we again will have a Democratic President. But if we don't also control the Senate, we will face the crippling 51 vote filibuster. Nothing meaningful will have changed. Indeed, several prominent Republicans went on the record to confirm that they would have blocked any appointment if Hillary Clinton became President.
So there you have it, the strangely untold truth. Since 1895, no Republican has ever provided a vote necessary to confirm a Democratic nominee, and no Republican since has remotely suggested that this unbroken history will change.
Hey Senate Democrats . . . are you still fretting over what to do?