Fights over high court seats are nothing new
Wondering when Supreme Court nominations became so politically contentious? Only about 222 years ago
— when the Senate voted down George Washington’s choice for chief justice.
This year’s brouhaha sees Senate Democrats and Republicans bracing for a showdown over President Donald Trump’s nominee, Neil Gorsuch. It’s the latest twist in the political wrangling that has surrounded the high court vacancy almost from the moment Justice Antonin Scalia died in February 2016.
“We are in an era of extreme partisan energy right now,” said University of Georgia law professor Lori Ringhand. “In such a moment, the partisanship will manifest itself across government, and there’s no reason to think the nomination process will be exempt from that. It hasn’t been in the past,”
Each side has accused the other of unprecedented obstruction. Republicans wouldn’t even hold a hearing for Merrick Garland, President Barack Obama’s nominee. Democrats are threatening a filibuster, which takes 60 votes to overcome, to try to stop Gorsuch from becoming a justice. If they succeed, Republicans who control the Senate could change the rules and prevail with a simple majority vote in the 100-member body.
The struggle spilled over into the Sunday news shows, where the Senate Democratic leader, Chuck Schumer, told NBC’s “Meet the Press” it’s “highly, highly unlikely” that Gorsuch will get 60 votes and Senate Majority Leader Mitch McConnell vowed the nominee will be confirmed this week one way or the other.
As she lays out in “Supreme Court Confirmation Hearings and Constitutional Change,” the book she co-wrote, Ringhand said, “There were more rejected nominees in the first half of the nation’s history than in the second half. That controversy has been partisan in many cases, back to George Washington.”
“Confirmations have been episodically controversial,” said Ringhand, who is the Georgia law school’s associate dean. “The level of controversy has ebbed and flowed.”
John Rutledge, a South Carolinian who was a drafter of the Constitution, was the first to succumb to politics. The Senate confirmed Rutledge as a justice in 1789, a post he gave up a couple of years later to become South Carolina’s chief justice.
In 1795, Washington nominated Rutledge to replace John Jay as chief justice. By then, Rutledge had become an outspoken opponent of the Jay Treaty, which sought to reduce tensions with England. A year after ratifying the treaty, the Senate voted down Rutledge’s nomination.