Even though the Supreme Court is not in session it is far from out of the news. With the nomination of Judge Kavanaugh, much of the conversation now surrounds expectations for the a fierce confirmation battle – possibly one of the most fierce we have ever seen.  Some speculate that notwithstanding the drama surrounding the failure of Judge Garland’s nomination, because Justice Gorsuch took the place of another conservative, Justice Scalia, the Democrats did not mount a significant struggle (or at least as significant as they could have) to combat the confirmation. Even so, the Republicans needed to enable and exercise the nuclear option to confirm Gorsuch as they would not have succeeded under the old Senate rules.  Now that the Republicans can put their mark on the Court for years to come with a justice more conservative than Justice Kennedy, many see the stakes as much higher.  Here are a few of the reasons why.

Historical Context

Supreme Court justice confirmation battles have taken many twists and turns in prior years and these have helped shape the type of confirmation hearing we can now expect to see.  The hearings are one of the few opportunities where the general public has the opportunity to see and hear a current or prospective justice candidly answer questions (or to be more specific, this at least was an intended function).

The nature of these hearings changed with the combative nature of the Bork hearings in 1988. Anita Hill’s sexual harassment allegations during Clarence Thomas’ hearings in 1991 increased media attention in Supreme Court confirmations dramatically. Now with  more aggressive vetting of potential nominees, nominees exercise increased caution in answering all questions.

Nominees now also posture themselves as purveyors of an objective standard of law, and avoid any reference to individual interpretation.  The last several nominees avoided answering any questions about personal beliefs, usually deferring to the norm that they should not answer questions that they might hear on the Court if confirmed.  This tactic has proved generally successful as the only recent nominees not to be confirmed, Merrick Garland and Harriet Miers never made it as far as the confirmation hearings.

Garland’s nomination changed the terrain over confirmation battles once again as Garland’s nomination sat pending for 294 days, a modern record, before it expired in January 2017.  The average time between nomination and a final action in the Senate across the last several nominations was much closer to two months (note: the following figures were constructed with the aid of data from the Supreme Court Justices Database).  Here are the times between nomination and confirmation for all confirmed nominees that had a hearing before the Senate Committee on the Judiciary.

Obviously none of these lengths of time compares to the amount Garland waited until his nomination finally expired without a confirmation hearing.  With a Republican controlled Senate and little chance of a credible Democrat opposition, we can likely expect Kavanaugh’s confirmation hearings to fall in a more normal zone of around two months from the time of his nomination this July.

Historically, Brandeis, the nominee with the longest time between nomination and confirmation, was also the first to have a hearing before the Senate Committee.  Brandeis faced opposition from big business interests over concerns that Brandeis would push for unwanted reforms.  Even though Brandies had the longest delay, historically the time between nominations and a confirmation vote has decreased for both successful and failed nominations.

Brandeis not only waited long before he was given a confirmation hearing, but also had the longest confirmation hearing to date for a confirmed or unconfirmed nominee.

With a Republican controlled Senate, we should not expect drawn out hearings like was the case with some earlier nominations (Gorsuch’s hearings lasted four days). Only about a quarter of the 162 Supreme Court nominations across time were unsuccessful and fewer would have been so if the Senate voting rules for Supreme Court nominees were historically the same as they are today.

Since 1975, Bork was the only nominee who made it to the Senate hearing and was not confirmed.  Going back to 1900, only 10 nominated individuals were not later confirmed.  Across the history of the Supreme Court, the votes for nominees were overwhelmingly favorable. When organized from most net votes to least, the confirmation votes look like the following.

Failed nominations have been fairly evenly distributed over the years although the bulk were in the Court’s earlier history as the following figure shows.

These figures allude to the possibility that modern nominees like Kavanaugh are more likely to be confirmed than their predecessors were, are also likely to wait longer periods of time to get a confirmation hearing, and that modern hearings are and will be relatively short compared to those in the past.  The newly enacted nuclear option providing for confirmation based on a majority of the Senate vote enhances the likelihood that nominations will now succeed.

Where Kavanaugh Fits In

Kavanaugh has gone through the confirmation process in the past as a nominee to the D.C. Circuit.  He actually had one of the more perverse experiences with the ABA’s Standing Committee on the Judiciary as he was initially given their highest ranking which was later rescinded for a lesser ranking.  Such moves by the ABA Committee has led to some to say this committee is guilty of partisan bias.  This distinction may be buffered by looking at recent nominees that have been given highly qualified or qualified evaluations by the ABA.

Whether or not the Republican nominees have been less qualified, they have born the brunt of more negative ABA evaluations which accords with Kavanaugh’s experience. With another ABA vote for Kavanaugh forthcoming, the potential evaluations have become an interesting source of speculation.

Confirmation success is relate to a multitude of other factors along with ABA qualifications ratings.  Clusters of nominees, for instance, came from similar home states – the most of them from New York.  Nominees have not been equally successful though from all geographic locales.

While all nominees from Virginia have succeeded in nominations, the only justice from Virginia in the last 100 years was Lewis Powell.  Meanwhile, even with a slew of past nominees have been born in Virginia, Kavanaugh is already in rarefied territory as a nominee born in D.C. Also, Bork is the only past nominee with a home state of the District of Columbia.

A Partisan Matter

We can also examine the success of nominees by their party affiliation and when nominees are divided by their last party affiliation some interesting differences become apparent.

While more Democrats have been nominated across the Court’s history, a higher percentage of Republican nominees have been successful. If Kavanaugh is successful he would add to this differential success of Republicans and Democrats (as a side note, the only nominee with an independent party affiliation was Felix Franfurter).

We can also look more granularly and focus on success by President.  This not only accounts for party affiliation and the reputation of the nominee but also the reputation of the President and the relationship between the President and Senate.

Historically, George Washington had the most nominations for Court candidates (granted he started out with the most open seats) while FDR had the most successful nominations without any failures.  President Trump still only has the one successful nomination with Gorsuch with his second pending with Kavanaugh.  With his second nomination to the Court, Trump looks to reach the success level of his predecessors Presidents Clinton and George H.W. Bush who both had two nominees confirmed and no failed nominations.

While there is little question about the Democrats’ resolve in stymieing this nominee, they have minimal leverage. With a Republican controlled Senate, a nuclear option where a majority vote means success, and a Republican President who made the nomination, the Democrats appear more or less powerless. Add to this the fact that even liberals within the legal community have had little resistance to offer, and it is unclear what type of credible fight the Democrats may make.  Without a majority in the Senate, the Democrats will have to convince several non-Democrats to vote along with them without losing the support of any Democrats.  While some signs hint at the public’s lukewarm perception of Kavanaugh, in this highly polarized political environment, especially since the Garland nomination, where so much breaks down to bare partisanship, preventing Kavanaugh’s confirmation seems a tall if not impossible order.

---

On Twitter: @AdamSFeldman; consulting @ Optimized Legal