Supreme Handwringing

If you missed it over the weekend, Elena Kagan was sworn in on Saturday as Justice Elena Kagan, two days after the Senate voted in favor of her nomination.  What did that vote tell us?

The Kagan vote was not a big bipartisan vote.  Only five Republicans broke ranks and voted for President Obama's second nominee to the court.

It has sparked a number of stories about partisanship when it comes to the confirmation process for the U.S. Supreme Court.  

But what does history really show?

Yes, Elena Kagan only received 63 votes last week in the Senate, which is the lowest number of votes for a nominee by a Democratic President since Harry Truman chose Sherman Minton for the Court in 1949.  Minton was approved on a 48-16 vote.

So Kagan didn't do that well, eh?  

Except when you stand back and realize that since Minton was nominated in 1949, the Senate has only voted on eight Supreme Court nominees made by Democrats.

You read that right.  In the last 61 years, the Democrats have only put eight people on the Supreme Court.  Three of them were approved by voice votes, which might seem odd, but that was standard Senate procedure for most nominations until the 1970s.

On the other hand, Kagan's 63 votes is low for a successful nominee in recent years, except in two cases - Samuel Alito received 58 and Clarence Thomas received 52.

Use that fact and you can argue that there is proof of more partisanship in these Supreme Court fights.

Except I remember covering Thomas.  It wasn't an especially partisan fight.  It just got ugly after the Anita Hill allegations surfaced.

I've heard lots of people reference the 98-0 vote that went to Justice Antonin Scalia in 1986, how we are very far away from that kind of debate, like the 96-3 margin for Justice Ruth Bader Ginsburg or the 87-9 vote for Justice Stephen Breyer or the 90-9 vote for Justice David Souter.

But sandwiched amongst those votes were some heated battles, like the one over Justice Thomas, the rejection of Judge Robert Bork in 1987 and the 65-33 vote for Chief Justice William Rehnquist.

In other words, there is an ebb and flow to these Supreme Court fights, just like a lot of things in life.

If you missed it over the weekend, Elena Kagan was sworn in on Saturday as Justice Elena Kagan, two days after the Senate voted in favor of her nomination.  What did that vote tell us? The Kagan vote was not a big bipartisan vote.  Only five Republicans broke ranks and ...