It’s a question that’s roiled the liberal universe for years: Why won’t 81-year-old Supreme Court Justice Ruth Bader Ginsburg resign from the Supreme Court and give President Obama the chance to pick her successor, in case the Senate turns Republican after the mid-terms?
Harvard Law Professor Laurence Tribe, one of the left’s jurisprudential heroes, had a ready answer to that question when it was posed to him at the University of California Santa Barbara late last month. There is, he said, not a chance in hell that this Senate would confirm her successor, no matter who he or she might be—not the way the process works today. And therein lies a tale about just how drastically the “advise and consent” process has changed, and why the smart bet would be on a paralyzed process, and perhaps even a Court with fewer than nine Justices, no matter what happens in November.
Once upon a time, the Senate took that “advise and consent” phrase of the Constitution literally: They sometimes advised, but almost always consented, to a President’s choice. From 1894 to 1967, only one Supreme Court nominee was rejected. (It was 1930, and as the Great Depression deepened, Judge John Parker’s alleged anti-labor and anti-civil rights rulings were deemed disqualifying). There were other controversial picks—lawyer Louis Brandeis was assailed as a dangerous radical when President Wilson named him to the bench in 1913 (and there was more than a hint of anti-Semitism in the opposition); Alabama Senator Hugo Black had to go on national radio to explain his membership in the Ku Klux after FDR named him in 1937.
But it wasn’t until 1968 that a President found his Supreme Court pick blocked. When Lyndon Johnson sought to elevate Justice Abe Fortas to the Chief Justice post to replace Earl Warren, a coalition of Southern Democrats and Republicans, angered by his liberal votes on civil liberties, his continued political counseling of LBJ, and some dicey financial dealings, successfully filibustered the nomination. (Republicans also hoped to stall the nomination, hoping their nominee could capture the White House in November. That strategy not only worked, but those financial dealings were to force Fortas off the Court a year later).
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