Confirmation hearings take on a familiar and hollow ring

There is a reason that the possi- bility of filibustering a nominee to the Supreme Court of the United States was referred to as the “nuclear option” during the latter years of the Bush administration, because its use would have assured the mutual destruction of bipartisanship in Washington, D.C.

Had the Democrats used it in 2006 against Justice Samuel Alito or were the Republicans to use it against Elena Kagan this summer, the result would have been the same: no succeeding president would be able to get a nominee through the endorsement process unless his party held a 60-vote majority in the Senate. Even if he nominated someone that appealed to the minority party to try to avoid a filibuster, he’d face a revolt from his own party. (Witness what happened to Harriet Miers when she was nominated by President George W. Bush and not only came under Democratic criticism, but was judged insufficiently conservative by Republicans.)

So, when Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, says Kagan’s nomination has “real problems” and that a filibuster is “conceivable,” that’s only half true. She will have problems because that is today the nature of the poisonously partisan confirmation process. But a filibuster is inconceivable.

Not a major shift

For one thing, Kagan does not represent an ideological shift on the court. She’d replace John Paul Stevens as one of four justices on the liberal-moderate side of the court. Swing voter Anthony Kennedy would remain in the middle. The conservative bloc, Chief Justice John G. Roberts and associates Antonin Scalia, Clarence Thomas and Samuel Alito would be intact.

It could be argued that the rightward shift on the court began with Stewart, who was nominated in 1975 by President Gerald Ford to replace a liberal icon, William O. Douglas, who had been put on the court in 1939 by President Franklin D. Roosevelt. Stewart may have evolved into a more liberal justice than Ford envisioned, but there is no question that in 1975 Democrats knew he was no Douglas. Still, Stewart was confirmed by a Senate vote of 98-0.

Others on the court receiving unanimous votes were Kennedy, 97-0; Scalia, 98-0, and Sandra Day O’Connor, 99-0. Arguably, all were more conservative than the justices they were replacing.

The most bitter confirmation battles in modern history have come when the nominees were markedly more conservative than the justices they were replacing. The most dramatic of those confirmation fights was that of Clarence Thomas who was nominated by President George H.W. Bush to replace Thurgood Marshall. It would be difficult to put together a list of substantive cases that might come before the court on which Marshall and Thomas would vote the same.

Thomas was confirmed by a vote of 52-48, a vote that suggests his nomination could have been blocked by a filibuster, but even in the heat of that 1991 battle, senators knew better than to go nuclear.

We’re stuck

The confirmation process today is what it is, unfortunately: a partisan playground on which even the side that knows it is going to lose will take whatever shots it can to impress whomever might be watching.

Today’s cartoon suggests the level to which a nominee will be forced to answer questions with deliberately evasive rhetoric, but it should be remembered that it was Thomas who testified during his hearings that he couldn’t remember ever having a conversation about the case of Roe v. Wade.

So, perhaps nothing should shock anyone about what happens in the coming days of confirmation hearings for Kagan.

The only shocking thing would be a return to the days when confirmation hearings were over quickly and resulted in votes like 98-0. Even more shocking would be the abandonment of the fiction that only liberal justices can be activist judges and that political conservatives are necessarily judicially conservative when ruling from the bench.