Joshua Spivak has written this article for the National Law Journal on the judicial nominations issue (paid subscription required). A snippet:
- While most of the current debates are focused on the lower courts, the Supreme Court is where much of the historical argument resides. The biggest myth in the discussion of judicial battles is that the judiciary was previously placed on a pedestal. The historical record for Supreme Court nominees belies this argument. In fact, since 1789, 33 of the 148 nominees for the highest court have either been rejected by a vote of the Senate, had the voting on their nomination repeatedly postponed or filibustered into nonexistence or eventually bowed out.
In the 19th century, more than a third of the nominees went down to defeat. What explains the widely held rose-colored view of a bipartisan, smooth-running judicial nominations process? Primarily, it is due to the more recent past. Between 1894 and 1968, only one Supreme Court nominee was rejected. But there was a good reason for the president’s success in nominating candidates: This 74-year epoch was noteworthy for one-party domination of both the presidency and Congress. As divided government once again became the norm, so did battles over presidential nominees.