Just to follow up quickly on yesterday’s post, Karl Rove’s claim that “throughout the history of the republic, Supreme Court nominations receive an up-or-down vote,” is terribly untrue. I noted that Republicans filibustered LBJ’s nomination of Abe Fortas, but David Greenberg had an item in Slate yesterday explaining that Senate problems with nominees goes back much further.
Article II of the Constitution puts the power of judicial appointments into the hands of both the executive and legislative branches of government, all but guaranteeing tugs-of-war over the judiciary. Arguing for the ratification of the Constitution, Federalists maintained that an active Senate, charged with providing “advice and consent” on appointments, would check the power of the presidency. “If by influencing the president be meant restraining him, this is precisely what must have been intended,” Alexander Hamilton wrote in Federalist No. 77. Or as Republican Sen. Orrin Hatch put it more recently, “We are not a rubber stamp.”
The Senate of the 19th century was no rubber stamp. The politics of that period are known for their partisanship, and the judicial wars were no exception. Between 1789 and 1894, 22 of 81 Supreme Court nominees failed to reach the bench as a result of being either rejected, withdrawn, or left unacted upon by the Senate.
One of these days, Bush is going to nominate someone to replace O’Connor, and it wouldn’t be terribly surprising if the nominee sparks intense Dem opposition. But every time you hear an accusation claiming that Dem resistance to Bush’s choice is “unprecedented,” remember that it’s total nonsense.