I bet you didn’t know that only one of the six men sitting on the US Supreme Court, Clarence Thomas, was placed there by a president who won more than half the popular vote on his inaugural term.
It’s true.
The divisiveness evident in the nomination of Brett Kavanaugh is a relatively recent phenomena, as is having the sitting president fail to win the popular vote. However, Kavanaugh may be its poster child given that the Senate vote for his confirmation is the closest since 1881, days in the shadow of the Civil War.
It took three years for the U.S. Senate, under Republican control, to give Kavanaugh a seat on the appellate court (a story seriously under-reported in this fall’s saga). That seating now looks like a long-term strategic chess move on the part of the GOP.
A comment on Facebook prompted me to research the current composition of the Court. Here’s what I found, in order of seniority:
- John Roberts, 63, Chief Justice since September 29, 2005
- Clarence Thomas, 70, Associate Justice since October 23, 1991
- Ruth Bader Ginsburg, 85, Associate Justice since August 10, 1993
- Stephen Breyer, 80, Associate Justice since August 3, 1994
- Samuel Alito, 68, Associate Justice since January 31, 2006
- Sonia Sotomayor, 64, Associate Justice since August 8, 2009
- Elena Kagan, 58, Associate Justice since August 7, 2010
- Neil Gorsuch, 51, Associate Justice since April 10, 2018
- Brett Kavanaugh, 53, Associate Justice since October 6, 2018
All three women received more than 60 votes during their Senate confirmation. Four of the six men failed to reach 60% in their confirmation vote:
- Thomas, 52-48
- Alito, 58-42
- Gorsuch, 54-45
- Kavanaugh, 50-48
Two of the nominations were marked by claims of sexual harassment or assault, Thomas and Kavanaugh.
Both Trump nominees reached the Court under controversy:
- Gorsuch because the Senate refused to act for 293 days after Justice Antonin Scalia died on February 13, 2016
- Kavanaugh for the claim of sexual assault, his partisan rant-filled testimony in response, and the widespread criticism of the nomination from lawyers, the American Bar Association, religious groups and editorial boards.
Roberts, minority Justice
Nominated by George W. Bush (48% popular vote; 50% EC vote).
Confirmed 78–22.
Bush nominated Roberts to the DC appellate court on May 10, 2001. The Senate Judiciary Committee did not hold a hearing. Bush nominated Roberts again on January 7, 2003 after the GOP became the majority party. The Senate confirmed Roberts on May 8, 2003.
After his serving on the bench for only two years, Bush nominated Roberts on July 19, 2005 to fill the vacancy created by the retirement of Supreme Court Justice Sandra Day O’Connor.
On September 3, 2005, Chief Justice William H. Rehnquist (nominated to the Court by Reagan, died, while the Roberts confirmation was still pending before the Senate. On September 5, Bush nominated Roberts to the position of Supreme Court Chief Justice.
Thomas
Nominated by George H.W. Bush (53.4% popular vote; 50% EC vote).
Confirmed 52 to 48.
Bush nominated Thomas to the Supreme Court on July 1, 1991 to replace retiring Justice Thurgood Marshall, the first black American to serve on the Court. From Wikipedia:
Toward the end of the early hearings, NPR’s Supreme Court correspondent Nina Totenberg received a leaked Judiciary Committee/FBI report that a former colleague of Thomas, University of Oklahoma law school professor Anita Hill, accused him of making unwelcome sexual comments to her when the two worked together at the Department of Education (DOE) and EEOC.
The Judiciary Committee sent the nomination to the full Senate without a recommendation. The Senate approved Thomas by four votes, the narrowest margin for approval in more than a century. His nomination will forever be remembered as one where the Senate Judiciary Committee treated a sexual harassment victim like a perpetrator.
Ginsburg
Nominated by Bill Clinton (43.0% popular vote, a plurality*; 69% EC vote)
Confirmed 96 to 3
Clinton nominated Ginsburg to the Supreme Court on June 14, 1993, to fill the seat vacated by retiring Justice Byron White.
* This was a third-party candidate election: Clinton, 43.0%; Bush, 37.4%; Ross Perot, 18.9%
Breyer
Nominated by Bill Clinton (43.0% popular vote, a plurality*; 69% EC vote)
Confirmed 87 to 9
Clinton nominated Breyer to the Supreme Court on May 17, 1994, to fill the seat vacated by retiring Justice Harry Blackmun.
* This was a third-party candidate election: Clinton, 43.0%; Bush, 37.4%; Ross Perot, 18.9%
Alito, minority Justice
Nominated by George W. Bush (48% popular vote; 50% EC vote, first term).
Confirmed 58–42
President George H. W. Bush nominated Alito for the Third Circuit Court of Appeals on February 20, 1990.
Bush (the younger) nominated Alito to the Supreme Court on October 31, 2005, to replace retiring Justice Sandra Day O’Connor.
Alito said he would avoid a conflict of interest by not voting on cases involving First Federal Savings & Loan of Rochester, NY, and two investment firms, Smith Barney and Vanguard Group, because he held accounts with them. However, in 2002, Alito upheld a lower court’s dismissal of a lawsuit filed against multiple investment company defendants, including Vanguard Group. When notified of the situation, Alito denied doing anything improper but recused himself from further involvement in the case.
Sotomayor
Nominated by Obama (53% popular vote; 67% EC vote)
Confirmed 68-31.
Bush nominated Sotomayor on November 27, 1991 to a seat on the U.S. District Court for the Southern District of New York. She was the youngest judge in the Southern District and the first Hispanic federal judge in New York state.
Clinton nominated Sotomayor on June 25, 1997 to a seat on the U.S. Court of Appeals for the Second Circuit.
Obama nominated Sotomayor to the Supreme Court on May 26, 2009 to replace retiring Justice David Souter.
Kagan
Nominated by Obama (53% popular vote; 67% EC vote)
Confirmed 63–37
Obama nominated Kagan to the Supreme Court on May 10, 2010 to replace retiring Justice David H. Souter.
Kagan was a tenured faculty member of the University of Chicago Law School before serving as Associate White House Counsel for Bill Clinton from 1995–1996. Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit on June 17, 1999. Senate Judiciary Committee Chairman Orrin Hatch (R-UT) refused to schedule a hearing on the nomination. She returned to academia at Harvard, becoming Dean of the Harvard Law School in 2003.
Obama nominated Kagan to be Solicitor General of the United States on January 5, 2009. The Senate confirmed her nomination 61 – 31, making her the first woman to hold this position.
The deans of more one-third of the country’s law schools endorsed Elena Kagan’s nomination in an open letter. The NRA opposed her nomination
Sen. Lindsey Graham voted for her in committee; he was joined by four additional Republicans in her confirmation vote.
Gorsuch, minority Justice
Nominated by Trump (47% popular vote; 57% EC vote)
Confirmed 54–45
Trump nominated Gorsuch to the Supreme Court on January 31, 2017 to replace Justice Antonin Scalia, who had died February 13, 2016.
Republican Majority Leader Mitch McConnell held this seat open a record 293 days and considers that hijacking of democracy his crowning achievement.
One of my proudest moments was when I looked at Barack Obama in the eye and I said, “Mr. President, you will not fill this Supreme Court vacancy.”
Obama had nominated Merrick Garland in February 2016. McConnell refused to hold hearings even though Sen. Orin Hatch (R-UT), a member of the Senate Judiciary Committee, had urged Obama to nominate Garland as “a consensus nominee” instead of Kagan in 2010.
Prior to Bush nominating Gorsuch to the United States Court of Appeals for the Tenth Circuit on May 10, 2006, he had been a trial lawyer in private practice and principal deputy to the Associate Attorney General, Robert McCallum, from 2005-2006.
Trump demanded that the Senate to use the “nuclear option” to abolish the filibuster for Supreme Court appointments if a filibuster would prevent the confirmation. Democrats began a filibuster on April 6, 2017. Senate Republicans voted to change Senate rules to end the filibuster for Supreme Court nominees, the nuclear option. This meant only a majority vote would be necessary to move a nominee to the floor for a vote.
The so-called Judicial Crisis Network spent $17 million in support of the Gorsuch nomination. The group was created in 2005 to promote Bush judicial appointees. The leading funder of JCN is the Wellspring Committee, which is directed by Ann Corkery; its funding source(s) is dark money (not disclosed).
Kavanaugh, minority Justice
Nominated by Trump (47% popular vote; 57% EC vote)
Confirmed: 50-48 and sworn in immediately following the vote
Trump nominated Kavanauch to the Supreme Court on July 9, 2018 to replace retiring Justice Anthony Kennedy. Justice Kennedy was a moderate conservative who was its longtime swing vote. Only one Supreme Court nominee has been confirmed on a closer vote; that vote was in 1881.
Bush nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit on July 25, 2003. Kavanaugh had previously worked with Ken Starr and was instrumental in orchestrating Bush’s rise to the White House through his judicial advocacy in Florida in November 2000. That nomination stalled in the Senate for nearly three years. During that time, Kavanaugh was staff secretary in the Bush White House, a senior staff position. Prior to that, he served in the White House Office of Legal Counsel from 2001 to 2003.
The American Bar Association downgraded its rating for Kavanaugh from “well qualified” to “qualified” in 2006. On a party-line vote, the Judiciary Committee recommended his confirmation; the Senate confirmed on a 57–36 vote, making him the fourth judge that Bush placed on the D.C. Circuit.
Kavanaugh’s time as a political operative came up during his Supreme Court nomination. It included time as a
Republican lawyer investigating President Bill Clinton on independent counsel Kenneth W. Starr’s team in the 1990s. He was an associate White House counsel and later staff secretary for Bush for nearly five tumultuous years after 9/11. He has written more than 300 opinions since becoming a judge on the U.S. Court of Appeals for the District of Columbia Circuit in 2006.
Judiciary Committee Chair Chuck Grassley (R-IA) scheduled the hearings well in advance of the Kavanaugh’s complete record being made available to the Committee. Hearings are currently scheduled two months month before the National Archives and Records Administration estimates it can produce the limited records Senate Judiciary Chair Chuck Grassley (R-IA) has requested.
At the time of the hearings, the Judiciary Committee had received records not from the National Archives but from Bill Burck, a Republican lawyer who is Kavanaugh’s former deputy. Burck has represented Steve Bannon, Don McGahn and Reince Priebus. In addition, he has represented Judge Alex Kozinski, Kavanaugh’s former boss who retired last year following multiple accusations of sexual misconduct, allegations which Kavanaugh claimed he had never heard.
the Trump administration invoked executive privilege to withhold more than 100,000 documents from Kavanaugh’s time in the White House. And on the night before the hearing, Burck dumped 42,000 pages of Kavanaugh’s records, with virtually no time for the committee to thoroughly review and assess these records before the hearing started.
Justice Kagan had also served in the White House prior to her nomination. Sen. Patrick Leahy pointed out that as chairman of the Judiciary Committee at the time of her nomination, he
worked hand-in-hand with then-Ranking Member Jeff Sessions to ensure that we received every document of interest to the Committee. When we were 12 days away from Justice Kagan’s hearing, we had already received a full 99 percent of her White House records.
Ninety-nine percent. Compare that to the six percent we have received for Judge Kavanaugh today. And every single one of Justice Kagan’s records was provided by the nonpartisan National Archives—not a political, partisan, and hyper-conflicted attorney.
During the confirmation process, Dr. Christine Blasey Ford accused Kavanaugh of sexual assault while in high school. Two other women, Deborah Ramirez and Julie Swetnick, also alleged instances of sexual assault. The Judiciary Committee agreed to hear only Dr. Ford. Kavanaugh’s testimony in response was replete with lies, from his asserting that he had not watched her testimony (contradicted by the Wall Street Journal) to his assertions that high school yearbook comments differed wildly from what his classmates agreed were accepted definitions.
Prior to the Senate vote on confirmation, the DC Court forwarded ethics complaints about Kavanaugh to Chief Justice Roberts; the complaints focused on “public statements he has made as a nominee to the Supreme Court of the United States.”
Roberts declined to act on the complaints:
Never before has a Supreme Court nominee been poised to join the court while a fellow judge recommends that misconduct claims against that nominee warrant review…
“If Justice Roberts sits on the complaints, then they will reside in a kind of purgatory and will never be adjudicated,” said Stephen Gillers, a professor at New York University Law School and an expert on Supreme Court ethics. “This is not how the rules anticipated the process would work.”
Appellate Court Chief Judge Merrick Garlandar recused himself from those ethics complaints. Karen LeCraft Henderson, nominated to the bench by President George H.W. Bush, reviewed the complaints in his stead.
She concluded that some were substantive enough that they should not be handled by Kavanaugh’s fellow judges in the D.C. Circuit…. This is done only in exceptional circumstances, under the judiciary’s rules on misconduct.
The so-called Judicial Crisis Network spent an estimated $3-6 million in support of the Kavanaugh nomination.
Elections matter. Vote in November.
Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com