Robert Costa’s notebook: Battles for the high court are unpredictable
By Robert Costa
President Trump’s nominee to replace retiring Justice Anthony Kennedy on the Supreme Court will be announced on Monday, July 9, with fanfare. Trump told reporters in recent days that he is planning to reveal his pick during television’s primetime that evening. Trump’s friends tell me he hopes the moment is drenched with drama, the trappings of the presidency — and good lighting.
Trump had a similar rollout for his last nominee for the high court, Justice Neil Gorsuch, and he was eventually confirmed by a 54 to 45 vote in the Senate.
But as much as the president is hoping for a repeat performance, confirmation battles are, historically, unpredictable. Past nominees who have seemed ready to sail through the Senate have stumbled — or never even made it to a vote. Questions of conduct and sometimes just raw politics have at times made the process a marathon.
Here are some examples:
This respected federal judge was nominated by President Obama in 2016 after the death of Justice Antonin Scalia, but he never made it to the Senate. Republicans, hoping that Trump would win and nominate someone more conservative, instead put a halt on the nomination. Garland, who still serves on the bench, has kept pretty quiet about the experience, but Democrats remain incensed. Earlier this week, Senate Minority Leader Chuck Schumer of New York urged Trump to tap Garland this time and bring the country together.
Trump’s White House counsel Don McGahn is leading the current search for a new Supreme Court Justice. Can you imagine if the president decided to pick him for the Supreme Court? A variation of that scenario occurred more than a decade ago when President George W. Bush surprised Republicans by asking his White House counsel, Harriet Miers, to serve on the court following the retirement of Justice Sandra Day O’Connor. Conservatives, in particular, were unhappy with Bush for pushing a candidate who did not have a judicial record or bring much evidence of conservative views. In the end, Republicans urged the White House to pull her nomination and Miers withdrew from the process. Ever since then, many Republican leaders have warned Presidents against picking people who are personal friends.
President Reagan selected Douglas Ginsburg in 1987 when Ginsburg was just 41 years old. The former Harvard professor, however, saw his nomination crack apart days later when it was reported that he had used marijuana during the 1960s, which at the time was a major political scandal. Ginsburg, under pressure and with news coverage souring, dropped out of the process less than a month later. And who was selected after that firestorm? Anthony Kennedy.
Conservatives cheered in 1987 when Regan nominated then federal judge Robert Bork for the court since they saw this nomination, in Reagan’s second term, as a prime example of conservatives ascending in the judiciary. Bork was well-liked on the right for believing in “originalism,” or the idea that Constitution should not be overly interpreted away from its original intentions. But Bork’s role in Richard Nixon’s scandal-plagued administration became a hot issue immediately and Democrats fought hard against his nomination, calling him a radical. Senator Ted Kennedy famously described “Robert Bork’s America” as a place where abortion was outlawed and “schoolchildren could not be taught about evolution.” Bork was eventually defeated in the Senate by a 58 to 42 vote.