CAPITOL HILL – capitol-protests” target=”_blank”>Capitol Hill<Justice Stephen Breyer resigned.
“We’re not looking forward to it,” said one senior congress” target=”_blank”>congressional<
But on the other hand, not all Supreme Court confirmation processes are dramatic. Just a select few.
It’s similar to how we build up Super Bowls.
Will super-bowl” target=”_blank”>Super Bowl LVI< and nflbe one for the ages? The incredible comeback by the nfl over the Atlanta Falcons in 2017 is considered to be the best Super Bowl of all-time. The 2009 matchup between the Pittsburgh Steelers and Arizona Cardinals is in the running, too. The 55-10 shellacking by the San Francisco 49ers over the Denver Broncos in 1990 was a dog.
Supreme Court nomination battles are similar.
The confirmation of Supreme Court Justice Brett Kavanaugh in September and October 2018 was absolutely bonkers. The hearings themselves were tense. Sniping between senators on the dais. Protesters roaming the Hart senate” target=”_blank”>Senate< nominated Justice Amy Coney Barrett days after Supreme Court Justice Ruth Bader Ginsburg died five weeks before the 2020 election. elections obviously didn’t care much for Barrett. But the confirmation hearings were tame – even though Barrett’s confirmation shifted the court far to the right. Still, Barrett didn’t carry some of the same baggage as Kavanaugh.
Supreme Court Justice Ruth Bader Ginsburg takes the court oath from Chief Justice William Rehnquist during a ceremony at the White House on Aug. 10, 1993. Ginsburg’s husband Martin holds the Bible. (AP Photo/Marcy Nighswander, File)
NEIL GORSUCH SPEECH TO FEDERALIST SOCIETY ON FRIDAY WILL BE CLOSE TO THE PRESS
The process was also calmer because virtually no members of the public descended on the hearings since the Senate Office Buildings were closed due to the pandemic. Sure, both sides were energized. But the discord wasn’t there – despite the Senate confirming Barrett days before the 2020 election.
One thought things would be more testy with Barrett. That’s because mitch-mcconnell” target=”_blank”>Senate Minority Leader Mitch McConnell,<, R-Ala., grilled Sotomayor at her 2009 confirmation hearing about a comment the justice made years earlier in several speeches. Sotomayor had argued that a “wise, Latina woman” may reach better decisions in legal cases than Caucasian men. Sessions and others criticized Sotomayor for suggesting that one’s “background and experiences” may outweigh the law and precedent. Sotomayor described the line as a “rhetorical flourish that fell flat.”
But few recall much else from Sotomayor’s confirmation hearings.
BIDEN’S HISTORIC SUPREME COURT PICK WILL BE A COME-FROM-BEHIND WIN FOR THE PRESIDENT
The confirmation hearings for Ginsburg and Breyer in the mid-1990s weren’t very contentious. But the 1991 confirmation of Justice Clarence Thomas only rivals the bedlam of the Kavanaugh hearings.
The Judiciary Committee had already closed the hearings and was ready to send Thomas’ nomination to the floor. But that’s when professor Anita Hill lobbed allegations of sexual harassment at Thomas. joe-biden” target=”_blank”>President Biden<doubled down that they needed a conservative. Ironically, Souter seemed to drift to the center if not the left during his time on the bench. But the process wasn’t fractious.
It’s far from clear as to how raucous things may be when President Biden nominates his successor for Breyer. The nominee could face a rocky confirmation process in a 50/50 Senate. Graham has hinted that some Republicans could support Biden’s nominee – depending on whom the president selects. McConnell is already setting up air cover for Republicans to vote no. If President Biden nominates a liberal, many GOPers could oppose the nominee on that basis alone, regardless of qualifications.
“President Biden was elected on the specific premise to govern the middle, steward our governing institutions and unite a divided country,” said McConnell.
President Joe Biden speaks on the retirement of Supreme Court Justice Stephen Breyer at the White House on Thursday, Jan. 27, 2022.
(Yuri Gripas/Abaca/Bloomberg via Getty Images)
BIDEN’S HISTORIC SUPREME COURT PICK WILL BE A COME-FROM-BEHIND WIN FOR THE PRESIDENT
The us-regions Republican reminded the president the Senate was 50/50.
“I suggest President Biden bear this in mind as he considers who to nominate to our highest court,” warned McConnell.
The Senate has never required the vice president to break a tie vote to confirm a Supreme Court nominee. In fact, no vice president ever cast a tie-breaking vote to confirm any nominee until 2017. Vice President Pence cast the tie-breaking vote to confirm Betsy DeVos as education secretary.
So how will this confirmation process go? A yawn-fest or the hurly-burly?
Is it a Joe Montana hitting John Taylor in the end zone with 16 seconds left to win the Super Bowl in 1989? Or is this a blowout like the Dallas Cowboys over the Buffalo Bills in 1993?
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Impossible to predict. We never truly know what will emerge from a nominee’s background or what they may say at the hearing.
In short, wild confirmation hearings are actually the exception. It’s hard to believe that the Senate confirmed six justices by voice vote – without an actual roll call – in the 1950s and 1960s. That list includes Chief Justice Earl Warren along with Justices William Brennan and Byron White.
Certainly don’t expect anything close to that this time around. But even if the confirmation process is contentious, don’t expect bedlam, either.
