In my new Confirmation Tales post, I provide a long view of how the confirmation process for Supreme Court justices has changed since my work three decades ago as a Senate Judiciary Committee staffer for Senator Orrin Hatch. I undertake to explain this dramatic difference between two pairs of nominations:
Apples-to-apples comparisons are rare, but the context of Bill Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994 bears a striking similarity to the context of Barack Obama’s nominations of Sonia Sotomayor and Elena Kagan sixteen years later, in 2009 and 2010:
- A charismatic, newly elected Democratic president has the gift of two Supreme Court vacancies in his first two years in office.
- The president, a lawyer and sometime professor of constitutional law, has a keen interest in the Supreme Court.
- The president enjoys a commanding Democratic majority in the Senate: in 1993-1994, 57 seats up until June 1993, and 56 seats through Election Day 1994; in 2009-2010, 58-60 seats at all relevant times.
- In each instance, the retiring justice publicly announces his forthcoming retirement in the spring, affording the White House a leisurely path to confirmation.
But there is one conspicuous difference between these two sets of nominations: Ginsburg (96-3) and Breyer (87-9) were confirmed overwhelmingly, with negative votes in the single digits, while Sotomayor (68-31) and Kagan (63-37) each received more than thirty negative votes. Stated more starkly: Only three Republicans voted against Ginsburg and only nine against Breyer, while only nine Republicans voted for Sotomayor and only five for Kagan.