Matt York / AP
A counter-protester, left, replies to people protesting against U.S. Supreme Court nominee Brett Kavanaugh outside the office of U.S. Sen. Jeff Flake, R-Ariz., Thursday, Oct. 4, 2018, in Phoenix.
Tuesday, Oct. 9, 2018 | 2 a.m.
In declaring her support for Judge Brett Kavanaugh on Friday, Sen. Susan Collins lamented a confirmation process that had become “so dysfunctional it looks more like a caricature of a gutter-level political campaign than a solemn occasion.”
But partisan fervor over Supreme Court nominations in the United States is nearly as old as the republic itself.
In 1795, George Washington’s nominee to serve as chief justice, John Rutledge, became the first to be voted down by the U.S. Senate. The rejection was based on his criticism of the Jay Treaty with Britain, one of the most contentious political issues of that time.
In the centuries since the court was established, about 16 percent of candidates submitted to the Senate never donned the coveted black robe — whether by outright rejection, withdrawal or deferring of the nomination. Sometimes the opposition was bipartisan: In 2005, both liberals and conservatives sunk President George W. Bush’s nomination of Harriet E. Miers, the president’s White House counsel.
And still more nominees, like Justice Clarence Thomas, fought their way to the court in confirmation battles that monopolized the nation’s attention and fueled partisan rancor. The confirmation of Kavanaugh on Saturday, despite allegations of sexual assault and misconduct, seems destined to be remembered in that category.
Partisan strife promises to follow him to the court, too. Rep. Jerrold Nadler, the Democrat in line to be chairman of the Judiciary Committee, said Friday that, should House Democrats win control of the chamber in November, they would open an investigation into the accusations against Kavanaugh, including the possibility that he committed perjury in his testimony.
Here’s a look at Supreme Court battles of the past:
Samuel Chase faces impeachment in 1804
Soon after he took office, President Thomas Jefferson, a Democratic-Republican, engaged in an effort to eliminate from the federal judiciary ideologues of the opposing party. Furious about the performance of Chief Justice John Marshall, who was nominated to the Supreme Court by Jefferson’s lame-duck predecessor, the president targeted Justice Samuel Chase, an ardent Federalist, for impeachment.
The House voted to impeach Chase on charges related to his partisanship and intemperate behavior, including an inflammatory speech chastising Congress for eliminating certain federal judgeships, according to an article in the American Bar Association Journal.
Chase was certainly “cranky and outspoken,” said Joel R. Paul, a law professor who wrote a book on the court during that era. But it was clear that Chase’s behavior did not qualify as “high crimes and misdemeanors,” and the Senate voted against ousting him, finding no reason for his removal from office on a constitutional basis.
Chase remains the only justice to stand trial on impeachment charges brought by Congress.
Roger B. Taney has the president on his side
President Andrew Jackson first nominated Judge Roger B. Taney to the Supreme Court in 1835, a choice that was controversial because of the judge’s opposition to the national bank, according to Paul’s book “Without Precedent.” Taney’s opponents attacked him for his “servility” to Jackson on the issue, and with fierce resistance from the majority Whig party, the Senate rejected him.
But the president had another chance to confirm his ally when the Democrats took control of the Senate that year. After Marshall died, Jackson’s nomination of Taney sailed through, according to a 2006 journal article in The Supreme Court Review. Taney was confirmed not just as a justice but as the court’s chief justice.
In 1857, Taney’s confirmation proved enormously consequential when he wrote the majority opinion in Dred Scott v. Sandford. The decision held that Dred Scott, an enslaved man who had lived for a time in a free state and territory, had no standing to sue for freedom on the grounds that blacks could not be citizens of the United States. The decision also declared that the Missouri Compromise was unconstitutional, fanning the flames that led to the Civil War.
President Nixon’s back-to-back rejections
In 1970, President Richard Nixon nominated Judge G. Harrold Carswell, a Southern conservative, to the Supreme Court. His previous nominee, Judge Clement F. Haynsworth Jr., had recently been rejected by the Senate after concerns arose about his support for segregation and the ethics of his personal finances.
A year earlier, Justice Abe Fortas — President Lyndon B. Johnson’s failed nominee for chief justice — had resigned from the court over ethics violations involving a deal with a Wall Street financier.
During Carswell’s nomination process, reporters unearthed a speech the judge had made in 1948 in which he voiced devotion to white supremacy and said segregation is the “only practical and correct way of life.” Carswell disavowed his own words, and Nixon maintained his steadfast support.
But in the Senate, the Democrats openly attacked Carswell’s nomination; one declared that his “incredibly undistinguished” career was an “affront” to the court.
The Senate ultimately rejected him by a vote of 51-45, with several senators changing their votes at the last minute to oppose his confirmation. The reason, many of them said, was that they feared confirming a nominee who had been accused of racial bias would have shaken the public’s faith in the court.
Robert H. Bork becomes a verb
President Ronald Reagan’s nomination of Judge Robert H. Bork in 1987 drew bitter opposition from liberal groups and Democratic lawmakers who anticipated that if he were confirmed, the court would tilt to the right on key issues like free speech, religion and abortion.
Sen. Edward M. Kennedy, D-Mass., warned of a nomination battle with perilously high stakes. “Robert Bork’s America,” he said, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids.”
The nomination called attention to the mass public that this singular confirmation — which followed Justice Antonin Scalia’s a year earlier — could determine the permanence of Roe v. Wade, said Larry Kramer, a constitutional historian and former dean of Stanford Law School.
Critics also homed in on Bork’s role in Nixon’s Saturday Night Massacre in 1973. Bork, then the U.S. solicitor general, complied with the president’s order to fire the Watergate special prosecutor, Archibald Cox.
The Senate rejected Bork 58-42, and the nomination fight gave rise to a new verb, particularly among conservatives: “borked.” They maintain he was smeared and rejected for reasons unrelated to his professional qualifications.
Douglas H. Ginsburg withdraws after marijuana ‘clamor’
After Bork’s failed nomination, President Reagan nominated Judge Douglas H. Ginsburg, who at age 41 was one of the youngest nominees to the court.
But days after the nomination was announced, news broke that Ginsburg had smoked marijuana in front of other professors and perhaps students while he was teaching at Harvard Law School, as recently as 1979.
Ginsburg admitted that he smoked once as a college student and a few times during the 1970s.
“I have not used it since,” he said at the time. “It was a mistake, and I regret it.” But it was not a good image for a president who had declared a “national crusade” against drugs, including a famous slogan from Nancy Reagan, “Just say no.”
Under bipartisan pressure, Ginsburg asked Reagan to withdraw his nomination, saying that his view of the law had been “drowned out in the clamor” over his marijuana use. His nomination never made it to the Senate.
