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Justices who squeeked though nomination now dominate the court
DANIEL A. COTTER
Law Bulletin columnist
Published: October 19, 2018
On Saturday, Oct. 6, the full Senate voted, 50-48, to confirm Brett M. Kavanaugh as the next Supreme Court justice. The two-vote margin is the second closest of those Supreme Court nominees who have received a Senate vote. (Of the 119 nominees, including five who were both associate justices and chief justices, about half were confirmed by Senate acclamation.)
The closest margin in history was by one vote (24-23) for Stanley Matthews, President James Garfield’s lone Supreme Court nomination. In what is a huge anomaly or telling statement about the politics involved in the process in the late 20th and early 21st centuries, four of the top 10 closest margins of victory are for justices who sit on the court currently:
Second place — Brett Kavanaugh 50-48
Fourth place (tied) all-time — Clarence Thomas 52-48
Sixth place — Neil M. Gorsuch 54-45
Ninth place — Samuel A. Alito Jr. 58-42
None of the Democratic nominees on the current court are in the top 10 and all enjoyed large margins in their Senate confirmation hearings. In addition, Chief Justice John G. Roberts Jr. received a large margin of senators, 78-22, and is the last justice to receive more than 70 votes. To round out the current Supreme Court, each of the remaining sitting justices received the following Senate results:
Ruth Bader Ginsburg — 96-3
Stephen G. Breyer — 87-9
Sonia M. Sotomayor — 68-31
Elena Kagan — 63-37
The reasons are various, including one that has not gained substantial focus — Republicans have turned to a specialized playbook, an approach of selecting justices who are more extreme and have paper trails in most cases reflecting their extremely conservative views.
The one exception on the current Supreme Court when it comes to paper trails might well be Thomas, who did not have an extensive paper trail when nominated. Roberts also did not have an extensive judicial record but had a very conservative track record and had worked for the Reagan administration.
The days of the surprise vote from a Republican-appointed justice are likely gone with the exception of Roberts’ ruling in favor of upholding the Affordable Care Act on tax grounds, no remaining justice has been a surprise swing vote in any case where he aligned with the Democrats.
U.S. Sen. Susan Collins, R-Me., on the talk circuit today suggested that the three prior swing voters — Justices David H. Souter, Anthony M. Kennedy and Sandra Day O’Connor — show that Kavanaugh will not vote along party lines.
Given the narrowness of his confirmation vote and the track records of the three others he now joins as narrowly confirmed, the nation should not expect such voting by Kavanaugh.
Some would argue that none of the four Democratic-appointed justices has acted as a swing vote and the simple answer is that is true. But there is a good reason for that — a swing voter is someone who decides the outcome of a ruling when there is a 4-4 split, so swinging the vote 5-4 one way or the other.
Kennedy was the last (occasional) swing voter on certain issues, but in his last term, he increasingly did not cross party lines. By definition, a swing voter breaks 4-4 ties, and here is the bottom line — since the October term 1971, there has never been a Democratic-appointed majority on the Supreme Court.
Thus, it would be a rare instance where someone from the left would be in a position to be a swing vote. It is not to say that Democratic-appointed justices are always lockstep.
A few immediate examples come to mind — in Bush v. Gore, Breyer joined six Republican-appointed justices in a 7-2 decision and in Brakebill v. Jaeger, a case the Supreme Court refused to take regarding North Dakota’s voter identification laws, only Kagan and Ginsburg dissented (Kavanaugh did not participate).
The Republicans have won the presidential election and with it, the right to appoint Supreme Court justices. What the closeness of votes suggests and the extreme ideologies present, though, is a potential crisis with the court, one with four justices narrowly confirmed and five who are very conservative, likely to vote consistently with each other on most matters of substance and especially in civil rights, executive powers and likely to cross the divide scarcely, if at all, on substantive constitutional matters.
Unlike prior courts, where there were surprises and justices who were not tethered to a strict adherence to various positions and we got anomalies such as the Warren Court on various matters and the Burger Court (Nixon was unanimous, and Roe v. Wade 7-2 decision included six Republicans in majority, three of whom President Richard Nixon had recently nominated and were deemed by him to be “strict constructionists”), with the retirement of the final occasional swing vote, Kennedy, the reality is expectations should be low that we will see many moderate decisions for the many years to come.
And with the two oldest justices being Democratic appointees (Ginsburg, 85, and Breyer, 80), it is entirely possible the conservative bloc could reach six or seven justices during President Donald Trump’s administration.
The republic teeters and many areas of justice are likely to be narrowed or reversed. The Republicans have achieved their goal — a revolution to overturn the work of the Warren and Burger Courts.
Daniel A. Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@llflegal.com.