As many bloggers both here at TMV and around the net have already pointed out it seems likely that Justice to Be Sotomayor will win a fairly easy confirmation. It is probable that she will get unanimous support from the Democrats and a decent level of support from the GOP.
So I thought I would offer a commentary on the criticism already appearing in some quarters about how the GOP is being obstructionist and somehow improper in their conduct on the Judiciary committee. If you look at history though I would argue that recently at least that shoe has been on another foot.
If you look at the four Supreme Court nominations prior to this one there is an interesting level of symmetry and an equally interesting level of divergence in how the confirmation hearings proceeded.
Just for a reminder the last four nominees would be Roberts, Alito, Breyer and Ginsburg, two of them nominated by Clinton and two by Bush. Each of the four nominees were very well qualified for the position with solid academic credentials.
In terms of ideology, while Roberts and Alito might be too conservative for some liberals or Breyer and Ginsburg might be too liberal for some conservatives, they all were and are within the judicial mainstream. None had any scandal in their background and all were more or less equally forthcoming in their answers.
Even their relationship to the departing Justices was similar, with one Clinton and Bush nominee replaced a more or less equivalent Justice (Breyer for Blackmun and Roberts for Rehnquist). The second nominee for each President was a slight departure but not too dramatically so.
Justice Alito replaced Justice O’Connor, making a shift to the right but both Justices were center-right and they matched on most issues. Certainly Alito is more conservative on Roe than O’Connor was but she was hardly a solid abortion rights vote.
Under Clinton, Justice Ginsburg replaced Justice White and this was arguably a greater shift as White was probably center-right on most issues while Ginsburg is clearly on the left. With regard to Roe, White was one of the original dissenters while Ginsburg is a solid pro Roe vote, so again if anything it was a greater shift in ideology.
In each case the President’s party had a majority in the Senate and the various majorities were roughly equal in size. So you would think the outcome would be roughly the same, with all four nominees getting solid 80 or 90 vote majorities.
Except that is not what happened.
Justice Breyer was confirmed 87-9 with 33 Republicans voting in favor of his nomination and just 9 voting no. Justice Ginsburg won 96-3 with the Republicans voting 41-3 in favor.
By contrast Roberts won by a 78-22 vote with Democrats voting 22-22 on the nomination and Alito won 58-42 with Democrats voting 42-4 against.
Now I am sure small minority on the left will offer some explanation about how great and fair the Clinton nominees were while the Bush nominees were somehow tainted, but the fact is an objective review shows all four nominees were pretty much identical in terms of qualification, mainstream judicial views, etc and yet the partisan divide was very different between the GOP and the Democrats.
Indeed if you look back through history it is difficult to find a case where a Democratic Supreme court nominee met with major GOP opposition. It is of course possible that this will change this time around and we will see the Republicans vote against Sotomayor in large numbers. But if they do they will not be the first to play this game