Of Biden, Bush, and the History of Judicial Confirmation Fights
There is no question that judicial confirmations have become more contentious over the past thirty years. Things were relatively peaceful from the mid-1970s until the mid-1980s. President Carter had no Supreme Court nominations, but saw a record number of lower court nominees confirmed, including one Stephen Breyer during 1980s lame-duck session.
The Reagan Administration sought to counter the influence of Carter’s nominees (and the perceived progressive tilt of the federal judiciary generally) by emphasizing the judicial philosophy of prospective nominees. This led to the circuit nominations of folks like Antonin Scalia, Robert Bork, Frank Easterbrook, Douglas Ginsburg, Stephen Williams, J. Harvie Wilkinson, and Ken Starr, among others.
In 1985, some Senate Democrats began strategizing how to stall or block Reagan’s judicial nominees, but they were wary of opposing Reagan’s nominees on ideological grounds. “You get on awfully thin ground rejecting [judicial] nominees on an ideological basis,” commented Senator Paul Simon in the Washington Post (11/12/1985). Thus they settled on a strategy of more careful scrutiny of nominees’ records and, once they took the Senate in 1987, delaying confirmations.
In 1992, then-Senator Joe Biden suggested the Senate should not consider Supreme Court nominees once the “political season” began, particularly if the White House and Senate were in opposite hands. This was already his practice with regard to key circuit court seats (e.g. Hope & Rymer in 1988; Roberts, BeVier & Boyle in 1991-92), and he wanted it to be the rule for the Supreme Court too. Senate Republicans returned the favor in 2000, holding up some of Clinton’s nominees, including one Elena Kagan.
In May 2001, President George W. Bush put forward an impressive slate of circuit court nominees. The list included the likes of John Roberts, Miguel Estrada, and Jeff Sutton. It also included Roger Gregory, who Bill Clinton had recess nominated to the Fourth Circuit after Senate Republicans blocked him, and Barrington Parker for the Second Circuit, as a gesture to New York’s Senate delegation. This was the most significant effort to de-escalate judi
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