Confirmation process: We’ve been here before

Before Merrick Garland, there was Abe Fortas. And before Brett Kavanaugh, there was Clarence Thomas, Robert Bork and Clement Haynsworth.

While higher profile in these days of 24-hour cable news, the current battle over President Donald Trump’s Supreme Court nomination of Kavanaugh has evoked memories of prior conflicts, especially the bitterly ideological 1987 battle over Bork and the 1991 charges of improper sexual behavior against Thomas.

It’s a reminder that, in these periodic Supreme Court confirmation fights, history often repeats itself— and not just because they inevitably pit Senate liberals against conservatives. Except for Thomas, every high court nominee enveloped in controversy over the past half century was rejected, a result the White House and Majority Leader Mitch McConnell are battling to avoid.

These recurring high dramas are hardly surprising in this polarized era, since replacing just one of the court’s nine justices can shift its entire ideological orientation. That is especially true now, given the likelihood that Kavanaugh would almost certainly move the court to the right, fulfilling Trump’s election pledge but making it more conservative on issues like abortion than most Americans.

Allegations that Kavanaugh, as a teenager, sexually assaulted a fellow high school student and behaved improperly toward a college classmate are most reminiscent of Anita Hill’s charges against Thomas. Kavanaugh and his supporters, like Thomas’, have flatly denied their validity.

But in long-term impact, this parallels the 1969 fight in which a bipartisan group of Senate liberals blocked Haynsworth, a conservative appeals judge named by President Richard Nixon to fill the vacancy created by the resignation of liberal Justice Fortas and move the court to the right.

President Lyndon B. Johnson initially nominated Fortas, his longtime attorney and political confidant, in 1965, and he was confirmed by voice vote just 14 days later. But in the final year of Johnson’s presidency, Chief Justice Earl Warren announced his retirement, and Johnson sought to elevate Fortas. That provoked a summer-long battle in which Republicans and their southern Democratic allies succeeded in blocking the nomination, voting to leave the choice to the next president just as GOP lawmakers refused in 2016 to confirm Garland for the vacancy created by the late Justice Antonin Scalia’s death.

In 1969, Nixon chose the more conservative Warren Burger as chief justice. Soon after, Fortas was forced to resign from the court over his acceptance of $20,000 in consultant fees from a financier jailed over illegal stock manipulation. That created an unexpected opportunity for Nixon to fill a liberal seat with a conservative.

Ironically, just as private financial dealings torpedoed Fortas, so too they damaged Haynsworth, who had ruled in several cases involving companies in which he held stock. In addition, civil rights groups questioned his votes in some desegregation cases. The Senate rejected him, 55-45, with both parties divided at a time each had both liberal and conservative members. Opposed were 38 Democrats and 17 Republicans, including the Senate’s two top GOP leaders; in favor were 19 Democrats and 26 Republicans.

Having failed to win Haynsworth’s confirmation, Nixon defiantly named another Southerner who was more conservative and less qualified, Judge G. Harrold Carswell. Ironically, the initial reaction was that he would be confirmed, as had been the case with Haynsworth and was, until recently, with Kavanaugh.

But Carswell’s record of hostility to civil rights groups and past racist statements sparked the same opposition coalition that defeated Haynsworth, though one of his own supporters, Sen. Roman Hruska, R-Neb., administered the coup de grace. Responding to critics calling Carswell’s record “undistinguished,” Hruska said, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.” Carswell was rejected, 51-45.

Nixon then nominated Judge Harry Blackmun, a moderate Minnesota Republican and a close friend of Burger. He was confirmed 94-0 but later angered conservatives by writing one of the modern court’s most significant decisions, legalizing abortions. Before Nixon’s first term ended, he named two more justices, decisively establishing the court’s conservative majority that remains today.

Over the next half century, the same coalition that defeated the two Nixon nominees rejected Bork, narrowly failed to beat Thomas and hopes to derail Kavanaugh. Meanwhile, party realignment has seen most conservatives become Republicans and liberals become Democrats, making these battles partisan as well as ideological.

That 1970 fight came after a presidential election led to an unexpected vacancy. Some of the emotion in the Kavanaugh fight stems from the GOP’s refusal in 2016 to even consider President Barack Obama’s nomination of Garland, enabling Trump to fill the Scalia vacancy with conservative Justice Neil Gorsuch.

And just as GOP moderates cast crucial negative votes in those battles of the 1970s, GOP Sens. Susan Collins of Maine and Lisa Murkowski of Alaska may well decide if the Senate confirms or rejects Judge Kavanaugh.