When President Biden chooses a Supreme Court candidate, he will return to a process he became fully acquainted with for a nearly two-decade tenure as the Senate Judiciary Committee’s ranking Democrat.
Biden oversaw many of the most controversial confirmation processes of the era as head of the committee from 1987 to 1995, and again from 1995 to 1997.
Not a Man of His Word
“The question, which is virtually rhetorical, is whether Biden recognizes things have changed,” Brookings Institution senior fellow Russell Wheeler said.
While many of the candidates Biden worked on during his tenure on the committee were straightforward, the seeds of today’s partisan warfare were sown during this era.
All this talk about Joe Biden being a "good and decent" man. Ask the families of Robert Bork and Clarence Thomas how "good and decent" he is.
— Larry O'Connor (@LarryOConnor) August 18, 2020
Biden supervised Robert Bork’s brutal confirmation proceedings in 1987 when he initially ran for president. Biden stated before Bork’s nomination that he would support him.
Biden stepped out against it when the nomination became formal, resulting in acrimonious hearings. Bork was ultimately ousted 58-42; his name has since become associated with political character assassination.
Four years later, during the contentious Clarence Thomas confirmation hearings, Biden garnered condemnation from both sides.
Thomas referred to Biden’s perplexing questioning as “beanballs,” whereas liberal and feminist groups condemned Biden for obstructing some testimony about Anita Hill’s sexual harassment allegations.
Thomas was confirmed on a 52-48 vote, a result that would not be out of character in 2022.
A World of Fantasy
However, it would be foolish to assert Biden initiated political battles over Supreme Court nominations, says Wheeler. Wheeler also asserts that party-line votes have become an “almost Pavlovian” inevitability in the modern era of hyperpartisanship.
“Many people have commented that Biden appears to exist in a fantasy world,” Wheeler remarked. “He seems to believe that Senate camaraderie still exists. I simply do not know. I’m not sure how much of that still applies today.”
Despite what happened with Bork or Thomas, Wheeler cannot conceive of a scenario in which justices would be approved today with 90 or more votes.
Amy Coney Barrett went from nomination to confirmation in 27 days (in the middle of a huge flare up in the pandemic)
— Joyce Alene (@JoyceWhiteVance) January 26, 2022
Historically, this was not always the case. Formerly, justices were frequently confirmed by unanimous voice vote, with some being confirmed mere days after being named.
Yet the most current justice, Amy Coney Barrett, received no Democratic support; this was the first time since 1869 that a nominee failed to garner opposing party support.
Given today’s split politics, the president’s candidate may face drawn-out, controversial confirmation hearings regardless of what he does.
Ron Bonjean, a Republican analyst who counseled Neil Gorsuch during his 2017 confirmation process, anticipates considerable opposition.
Sen. Lindsey Graham of South Carolina has expressed support for J. Michelle Childs, a district court judge from his home state.
There is a possibility that centrist Republicans such as Mitt Romney, Susan Collins, or Lisa Murkowski could lend the process a bipartisan layer.
If not, a second consecutive party-line vote on judicial nominees may test the hypothesis as to whether a vice president may dissolve a Senate judicial nomination stalemate.