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John A. Tures, LaGrange College
(THE CONVERSATION) The framers of the Constitution envisioned a Supreme Court that would be largely outside politics, protecting Americans’ liberties. Alexander Hamilton, for instance, declared that “a limited Constitution … can be preserved in practice no other way than through the … courts of justice.”
Hamilton went on to explain that the courts must “declare all acts contrary to … the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” That was why the framers created the judiciary – specifically, the Supreme Court – as part of the Constitution: so its authority would have the same origin as the executive and legislative branches of government.
Yet battles over Supreme Court nominations began not long after the Constitution took effect in 1789 and continue to the present day. Most of them weren’t over ideals or constitutional principles like those Hamilton set out, or even concerns about nominees’ potential involvement in corruption. Instead, they were about partisan politics.
The statistical analysis my undergraduate students and I conducted at LaGrange College reveals that many Supreme Court nomination battleswere political – and often depended on whether the president’s party also had control of the U.S. Senate.
Back to the early days of the United States
Even George Washington – the very first president of the United States – faced a political conflict over a Supreme Court nominee.
In 1795, Washington nominated South Carolina judge John Rutledge to be the chief justice. Rutledge had actually been an associate justice of the Supreme Court from 1789 to 1791, when he resigned to take a leading role in the courts of his home state, meaning he had already been Senate-confirmed.
But when it came time for the Senate to vote on Rutledge’s reappointment to the court’s most senior position, senators rejected him. After his nomination – but before their vote – Rutledge had spoken out against a treaty with Great Britain, which Washington had supported and the Senate had just ratified.
The Senate’s own history reports, “In turning down Rutledge, the Senate made it clear that an examination of a nominee’s qualifications would include his political views.”
Sometimes, conflict was high: From 1844 through 1861, for instance, twice as many nominees were denied the higher court than were confirmed.
In the modern era, a 1968 filibuster blocked Abe Fortas from becoming the nation’s first Jewish chief justice; Ronald Reagan’s nomination of Robert Bork was rejected in 1987; and Senate Majority Leader Mitch McConnell blocked Barack Obama’s nomination of Merrick Garland in 2016.
Donald Trump’s nominations of Neil Gorsuch and Brett Kavanaugh were also politically charged – as will be that of his newest nominee, Amy Coney Barrett.
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Most nominees are approved
In a look at the Supreme Court nomination votes through history, my student researchers and I found…
Read More: Partisan Supreme Court battles are as old as the United States itself