Bench Memos

On Richard Lugar’s Defeat and Supreme Court Confirmation Votes

One noteworthy aspect of Indiana state treasurer Richard Mourdock’s resounding defeat of longtime incumbent Richard Lugar in the Republican primary for the U.S. Senate seat yesterday is the role that Lugar’s votes for President Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, played in his defeat. Some examples:

A statement by Mourdock’s spokesman late in the campaign cited Lugar’s votes “for Obama’s liberal Supreme Court judges” as the lead piece of evidence showing that Lugar “has truly lost touch with his conservative Hoosier values.”

This Indianapolis Star article today offering five reasons that Lugar lost highlights his support for Justice Sotomayor and Justice Kagan in reason #2, Lugar’s voting record.

And a very active Lugar supporter in Indiana tells me (by e-mail): “Lugar’s votes for Sotomayor and Kagan were critical to the outcome. Mourdock and Club for Growth hammered Lugar for those votes. Those votes were as big as any other issue in his defeat.”

There should of course be no surprise here, as the political mobilization of conservatives on Supreme Court and other judicial nominations over the past decade or more has transformed the judicial-confirmation process. The Left mobilized first, during the Reagan years, most notably in the defeat of Robert Bork’s Supreme Court nomination in 1987. Even in the aftermath of the Bork and Thomas hearings, Republican senators continued to invoke the principle of deference to the president, as they voted overwhelmingly in favor of President Clinton’s nominations of Ruth Bader Ginsburg (confirmed 96-3) and Stephen Breyer (87-9*) in 1993 and 1994. But conservatives came to recognize that a unilateral, unreciprocated embrace of that deference model amounted to abject surrender in the battle over the courts, and most Republican senators saw fit to change course. But not, alas for him, Senator Lugar.

* Curiously, Lugar was one of the nine senators who voted against Breyer’s nomination. Lugar based his vote not on grounds of judicial philosophy but on Breyer’s investment in a Lloyd’s of London insurance syndicate that exposed him to unlimited personal liability. That investment, Lugar maintained, showed “extraordinarily bad judgment” and would “force him necessarily to recuse himself from many cases that come before the Supreme Court of the United States involving insurance, pollution, asbestos suits, other issues.” (Cong. Rec., July 29, 1994.) I’d be interested in a thorough account of how Breyer, unlike other Lloyd’s investors, somehow managed to escape that investment and the unlimited personal liability that accompanied it. [Update: Tony Mauro kindly calls my attention to his Legal Times article, dated Nov. 21, 1994, that discusses how Breyer extracted himself from the Lloyd’s insurance syndicate by purchasing a reinsurance policy with another Lloyd’s syndicate. The article offers competing views on whether that escape was available to other Lloyd’s investors.]

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