How to kill a Supreme Court nomination

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Story highlights

  • Supreme Court nominations have gone off track when a president overplayed his hand
  • Another issue can stem from a presidential administration slipping up on candidate vetting

(CNN)Derailing a president's choice for the US Supreme Court is difficult. But it has happened eight times in the last half-century, through the kind of Senate combat that led to the 1987 defeat of Robert Bork and administration missteps like the 2005 case of Harriet Miers.

President Donald Trump said he would announce his proposed successor to the late Justice Antonin Scalia next Thursday. Senate Democrats and their liberal allies, outraged over last year's unprecedented refusal to consider President Barack Obama's nominee, have vowed to fight a right-wing choice.
The stakes are significant for the law in America and any check by the judiciary on the executive branch. Unlike a president's Cabinet choices, who are limited to his term in office, the nine justices serve for life.
The current court is one of the most ideologically polarized ever. Important disputes over civil rights, criminal procedure and corporate regulation often come down to the vote of a single justice.
In the past five decades, nominations have gone off track when a president overplayed his hand or his administration slipped up on candidate vetting. An instance of the latter involved US appeals court judge Douglas Ginsburg, who President Ronald Reagan selected in 1987. Ginsburg withdrew after reports that he smoked marijuana when he was a Harvard law professor in the 1970s.
1987: Senate rejects Bork nomination
1987: Senate rejects Bork nomination

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Some nominations toppled after Senate opponents depicted the jurists as a serious threat to civil rights and racial equality, as with Reagan nominee Bork, or earlier, President Richard Nixon's choices of Clement Haynsworth in 1969 and G. Harrold Carswell in 1970.
The single most common factor in the eight failed nominations -- out of a total 25 since 1968 -- involved the political makeup of the Senate. The leading opposition party -- typically Democratic -- held the majority in the chamber.
Democrats lack that advantage now. Currently, Republicans dominate the Senate, with 52 seats to the 46 Democrats and two independents.
Democrats could mount a filibuster against a nomination, which would require 60 votes to break. But such a move could inspire the Republican majority to invoke the so-called "nuclear option," a change in Senate rules to banish filibusters and let an appointee through on a simple majority vote.
Democrats remain bruised by the Republican majority's 10-month refusal to act on Obama's effort to replace Scalia with Chief Judge Merrick Garland of the US Court of Appeals for the District of Columbia Circuit.
"If the nominee is out of the mainstream," Senate Minority Leader Chuck Schumer, D-New York, said on CNN's "State of the Union" Sunday, "we will do our best to keep the seat open."

Past is prologue

Modern Supreme Court battles began with Democratic President Lyndon Johnson's attempt to elevate Associate Justice Abe Fortas to the chief justice spot in 1968.
Fortas, a longtime confidant of Johnson, had been on the bench since 1965 and a consistent vote for the liberalism inspired by Chief Justice Earl Warren, who was ready to retire.
In the last year of his presidency, Johnson's political capital was dwindling. Southern Democrats joined with Republicans to filibuster the nominee derided as far too far to the left and a Johnson "crony."
Johnson's separate 1968 nomination of Homer Thornberry, for the seat that would have opened if Fortas had been elevated to chief, also went down. No vote was every taken on Thornberry, a federal appeals court judge in Texas and close pal of Johnson through home-state ties.
The following year, Fortas, facing new conflict-of-interest accusations related to his personal finances, would resign from the court.
Nixon, elected president by then, stumbled in his first two attempts to fill the seat.
The records of each of the judges inspired opposition from civil rights advocates, along with general resistance from some Democrats fuming over Fortas' rejection.
Haynsworth, a US appeals court judge in South Carolina, was defeated 55-45. Next up was Carswell, a US appeals court judge in Florida whose past segregationist tendencies emerged along with questions about his standing in the legal profession.
In response to criticism that the judge was "mediocre," Republican Sen. Roman Hruska of Nebraska famously declared, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation aren't they?"
The Senate defeated Carswell 51-45.
Nixon's third nominee, Harry Blackmun, a federal appeals court judge in Minnesota, was confirmed 94-0, a year after Fortas had resigned.
President Reagan ushered in the next failed nominations. Opposition to Bork, then a veteran judge on the US Court of Appeals for the District of Columbia Circuit, galvanized immediately.
Sen. Edward Kennedy, D-Massachusetts, declared on the Senate floor, "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids ... ."
Bork lost 58-42. Reagan next picked Douglas Ginsburg, also of the DC Circuit. After reports of the marijuana use, he withdrew without Senate action. Reagan's third choice on that round, US appeals court judge Anthony Kennedy of Sacramento, was confirmed by a vote of 97-0.
The next botched nomination was that of Republican President George W. Bush, who selected White House counsel Miers in October 2005 to succeed the retiring Justice Sandra Day O'Connor.
Miers was a longtime friend of Bush from Texas and had limited constitutional law experience. She withdrew from consideration not because of Democratic opposition, but because Republican doubts that she would be a staunch conservative on the bench.
In one of the stranger twists of nomination politics, Bork played a leading role in Miers' demise and Bush's alternate selection of appeals court judge Samuel Alito for the O'Connor seat.
Bork, who by 2005 had resigned from the bench, contended that Miers' scant constitutional-law credentials and unproven conservatism made her nomination "a disaster on every level."
Some liberals hope the Merrick Garland fiasco at the hands of Senate Republicans inspires a new Supreme Court version of "what goes around comes around" with Senate Democrats.