The American legal and judicial system 503in history. The other 26 nominees were rejected for political reasons. Most commonly,
when a president makes a nomination close to an election and the Senate is controlled
by the opposing party, the Senate will kill the nomination, hoping that its party will win
the presidency and nominate a justice more to its liking.
Throughout the nineteenth century, the Senate was very willing to turn down
Court nominations for political reasons. In fact, between 1793 and 1894 the Senate did
not confirm 21 nominees to the Court, which was about a third of the total number
nominated. In contrast, between 1894 and 1968 the Senate did not even require
nominees to testify and during that period only 4 nominees were rejected.
A rethinking of this passive role occurred in the late 1960s. President Nixon
vowed to pull the Court back from the “liberal excesses” of the Warren Court, but the
Senate stiffened its spine and rejected two conservative nominees in a row: Clement
Haynsworth (in 1969) and G. Harrold Carswell (in 1970). With Haynsworth, there
were ethical problems involving his participation in cases in which he had a financial
interest. Carswell had a mediocre judicial record, and civil rights groups raised
questions about his commitment to enforcing antidiscrimination laws. Nixon must
have thought that the Senate wouldn’t reject his choice twice in a row! The most
recent Senate rejection was of Judge Robert Bork, a brilliant, very conservative, and
controversial figure. Liberal interest groups mobilized against him, and the Senate
rejected him by the widest margin of any nominee since 1846 (the vote was 42 to 58),
giving the English language a new verb: to get “borked” means to have your character
and record challenged in a very public way. The Senate’s unwillingness to even consider
President Obama’s nomination of Merrick Garland to the Supreme Court to fill the
vacancy left by Justice Antonin Scalia’s death in February 2016 may signal a return
to the more politicized era of Supreme Court nominations in the nineteenth century,
especially given that the strategy worked. Garland was picked to appeal to moderates
in the Senate, but the Republican leadership decided to leave the seat open for the rest
of Obama’s presidency in an unprecedented move. The gamble paid off when Trump
won the presidency and nominated Neil Gorsuch, who was approved by a 54-45 vote in
the Senate.^26 Brett Kavanaugh, whose confirmation was more contentious due to sexual
assault allegations, was ultimately confirmed in a 50–48 vote.
Yet not all recent Supreme Court nominations have been controversial. President Bill
Clinton’s two Supreme Court picks were judicial moderates who were overwhelmingly
confirmed—Ruth Bader Ginsburg by a 96–3 vote and Stephen Breyer by an 87–9 vote.
George W. Bush’s nominees, John G. Roberts Jr. and Samuel Alito Jr., were confirmed by
comfortable margins. President Obama appointed the first Latina to serve on the Supreme
Court, Sonia Sotomayor, who was confirmed by a 68–31 vote. Elena Kagan’s confirmation
by a 63–37 vote in 2010 meant that three women were serving on the Court for the first time.Battles over Lower-Court Judges The contentious battles between the president
and the Senate over nominees to the federal bench and the Supreme Court have
recently expanded to include nominees to the district and appeals courts. For much
of the nation’s history, the president did not play a very active role in the nomination
process for district courts, instead deferring to the home-state senators of the
president’s party to suggest candidates—a norm called senatorial courtesy. If neither
senator from the state was from the president’s party, he would consult House
members from his party and other high-ranking party members from the state for
district court nominees. The president typically has shown more interest in appeals
court nominations. The Justice Department plays a key role in screening candidates,
but the local senators of the president’s party remain active as well through the “blue
slip” process: home-state senators record their support or opposition to nominees on
blue slips of paper. Some committee chairs have allowed a single home-state senator to
use the blue slip to veto a nominee, but others have not followed the process so strictly.senatorial courtesy
A norm in the nomination of district
court judges in which the president
consults with his or her party’s
senators from the relevant state in
choosing the nominee.Full_15_APT_64431_ch14_488-529.indd 503 16/11/18 1:44 PM