In a topsy-turvy two weeks of high political drama, the US Senate is on the brink of voting on the appointment of Brett Kavanaugh to the high court. If he does survive the FBI background check currently underway, and he is confirmed, it will be by the slimmest of margins. Perhaps even one vote. If he isn’t confirmed, he will be the first judge not confirmed by a floor vote since Robert Bork in the 1980s.
How does Kavanaugh’s possible confirmation stake up against those currently sitting on the bench. Let’s take a look at the intriguing numbers.
Of the previous nine Supreme Court justices confirmed by the Senate spanning three decades and five presidents, five have been nominated by Republican presidents and four by Democratic presidents. Two additional nominations during that time span were never voted upon. Harriet Miers, a George W. Bush nominee, withdrew from the process. Merrick Garland appointed by President Obama in 2016 never had hearings or a vote. With these two out of the picture, there are some voting patterns which are interesting to look at.
Let’s start with the four justices appointed by Democratic presidents: Ginsburg, Breyer, Sotomayor, Kagan. Their combined confirmation vote tallies are 314 ‘yes’ votes and 80 ‘no’ votes for an overall approval rate of 80%. This clearly shows some broad non-partisan support from the Republic party towards Democratic nominees.
What about Republican nominees? The five appointed by Republican presidents were: Souter, Thomas, Roberts, Alito, & Gorsuch. Their combined confirmation vote tallies are 332 ‘yes’ votes and 166 ‘no’ votes for an overall approval rate of only 67%. However, if Souter, the only one of our list no longer on the Supreme Court, is dropped off this list, the numbers change to 242 ‘yes’ votes and ‘157’ which is only a 60% affirmative rate. Souter also is a bit of an anomaly because, though appointed by a Republican, he was widely viewed as a staunch liberal justice.
So, of the current Supreme Court members, Democratic appointed candidates fly through confirmation at an average of 80% affirmative votes but Republican candidates squeak by at only 60%, and this number will assuredly go down later this week when the Senate votes on Kavanaugh. Even if confirmed, it will likely be by a mere 1 or 2 votes. As a side note, a Democratic appointee hasn’t been rejected since the Grover Cleveland presidency. Yeah, it’s been a while.
What’s the reason for such a voting discrepancy?
Let’s pose a few ideas.
Option 1: Do conservatives have a more literal view of the constitution? As such, their role as “advice and consent” hinges more on whether a candidate is worthy of such a nomination regardless of whether they agree with his or her political persuasion? Ginsburg might be a good study here. She was clearly a judge with a very liberal voting record. She was even a member of the board of directors of the ACLU. Clearly liberal. Yet, qualified—even Republicans agreed by joining the Democrats in approving her appointment with an astonishing 96-3 vote. While something like that won’t happen today, you’ll still notice that Kagan and Sotomayor’s confirmations were much easier than all Republican-appointed justices since Roberts.
Option 2: Are liberals more aggressive in seeking their progressive agenda through the court systems? As such, they purposefully seek to confirm justices who they deem to be progressive and are more contentious with those candidates whom they deem will be a hinderance to progressivism? I think this is doubly true with the Kavanaugh nomination because of its significance related to Roe v. Wade.
Option 3. It’s all random?
Option 4: You make the call!
Here is a list of the last nine justices confirmed to the Supreme Court. What will be Kavanaugh’s numbers – if he makes it?
Gorsuch 54-45 (Trump)
Kagan 63-37 (Obama)
Sotomayor 68-31 (Obama)
Alito 58-42 (G. W. Bush)
John Roberts 78-22 (G. W. Bush)
Ginsburg 96-3 (Clinton)
Steven Breyer 87-9 (Clinton)
Thomas 52-48 (G. H. W. Bush)
David Souter 90-9 (G. H. W. Bush)
Whatever these numbers ultimately mean, Trump is going to have to fight and scrape for any of his nominations to get through, and if he did have to appoint a successor to Ginsburg, don’t hold your breath for 96 voting to confirm. Those days are long gone.