President Trump’s second nominee to the Supreme Court, Brett Kavanaugh, was confirmed by the Senate 50 to 48. Kavanaugh is the fourth ‘minority justice,’ meaning that the senators who voted to confirm him got fewer votes in their last election than did the senators who opposed him. The other three such justices were Neil Gorsuch, Trump’s other choice, Samuel Alito, selected by George W. Bush, and Clarence Thomas, selected by George H. W. Bush. Of course, George W. Bush and Trump are minority presidents having received fewer votes than their Democratic opponents, but assuming the presidency thanks to the Electoral College.
In the cases of Gorsuch and Kavanaugh the senators who opposed him got almost 20 million more votes than his supporters. Such an anti-democratic outcome is the result of two factors. First, each American state gets two senators whether their population is California’s 39 million or Wyoming’s 580,000. The smaller states are mainly rural and vote Republican while the most populous states are mainly urban and, except for Texas, vote Democratic. Second, those four minority justices were highly contentious choices and aroused massive opposition that ensured they would be confirmed with narrow majorities composed of almost only Republicans.
Kavanaugh initially appeared to be just one more right wing jurist of the sort that Trump’s Republican predecessors nominated to the Supreme Court and lesser Federal Courts. However, in September three women came forward to accuse Kavanaugh of attempted rape, indecent exposure, and gang rape when he was in high school and college. Acquaintances of Kavanaugh stated that he had been a heavy drinker who became belligerent when drunk; although others said they never say him engage in abusive actions toward women. Kavanaugh’s most credible accuser, Dr. Christine Blasey Ford, a professor of psychology, testified before the Senate Judiciary Committee and polls indicate that a heavy majority of Americans believe that she and not Kavanaugh was telling the truth. Kavanaugh then delivered a highly partisan and aggressive response. In response to questions, Kavanaugh told obvious lies about evidence from his high school yearbook. He also had lied during his initial hearing about his record as an official in George W. Bush’s Administration.Kavanaugh’s private behavior and his willingness to commit perjury before the Senate sets him apart from other extremist judicial nominees (except of course for Clarence Thomas who was accused of sexual harassment and lied about that and other matters before the senate).
Supreme Court appointments historically were highly charged only in periods when the Court was poised to decide (or had decided in ways many found extremely objectionable) issues at the forefront of public contention: slavery, Reconstruction, the New Deal, segregation, prayer in schools, abortion, same sex marriage. Thus, in 1968 a coalition of Republicans and southern Democrats filibustered President Lyndon Johnson’s nomination of Abe Fortas as Chief Justice, hoping that the new president would be a Republican and select someone who would reverse or at least limit the Warren Court rulings on race, defendants’ rights, and prayer in schools. The gambit worked and Nixon shifted the Court to the right, with the enormous exception of Roe vs. Wade, the decision which moved blocs of religious conservatives, who would make abortion and judicial selections their prime voting criteria, into the Republican Party.
Beginning with Reagan, Republican Supreme Court choices have been, with the exception of Bush I’s choice of David Souter, uniformly at the right end of justices. The Supreme Court, even after Obama’s two appointments, is the most conservative overall since the period before FDR appointed a majority of justices. In terms of business cases, Alito and Roberts are the two most conservative justices since 1946 and Thomas, Kennedy, and Scalia also were in the top ten in that ranking. We can expect Gorsuch and Kavanaugh also to be extremely pro-business and to vote to undermine labor unions. Only Sotomayor is among the ten justices least likely to vote for business--all the others at that end of the spectrum were appointed by FDR, Truman, Eisenhower, Kennedy, and Johnson. Thus, Trump’s two Supreme Court appointments merely continue the trend from Nixon through Reagan to the Bushes.
Numerous commentators, and of course Democratic politicians, see Mitch McConnell’s decision to refuse to allow even a hearing, much less a vote, for Obama’s nomination of Merrick Garland to replace the deceased Antonin Scalia in 2016 as unprecedented and a break with Senate custom. Certainly, the refusal to hold hearings was new. However, in substance, the result was the same as the filibuster against Fortas. What is different is that this blockade was exclusively Republican, while Fortas was opposed, and supported, by both Democrats and Republicans. In both 1968 and 2016 the open Supreme Court seat became a central issue in the presidential campaign and both Nixon and Trump exploited that opening with skill to bring out opponents of liberal Supreme Court decisions.
What has changed are the ideological lines in both the Senate and on the Supreme Court. Senators in the two parties now are almost unanimous in opposing nominees from presidents of the other party. Republican appointees are much further to the right now than they were under Nixon, while Obama and Clinton’s choices, with the exception of Sotomayor, are less liberal those of Kennedy and Johnson. This shift to the right, and Republican dominance of past and present Supreme Court nominations now is affecting the US political system itself. Republican Supreme Court appointees have voted to allow ever more extreme measures by Republican controlled state governments to restrict voting rights and to gerrymander state and Federal legislative districts. In addition the Supreme Court has ruled that unlimited political spending is a free speech right. These sorts of decisions help Republicans win elections, thereby guaranteeing that the judiciary will become ever more reactionary.