As the American political world gears up for what promises to be one of the most acrimonious, bitter, and embarrassing confirmation hearings in the history of the federal judiciary, I'm curious if anyone has picked up on a common theme when it comes to these reputation desecrations we call senatorial "advise and consent."
Out of sheer curiosity I conducted an informal, and extraordinarily unscientific survey of a small group of 5 politically aware colleagues and friends. I asked them to name as many of our current Supreme Court justices as they could. Here were the results:
- Justice Clarence Thomas (5/5)
- Justice Stephen Breyer (1/5)
- Chief Justice John Roberts (5/5)
- Justice Samuel Alito (4/5)
- Justice Sonia Sotomayor (2/5)
- Justice Elena Kagan (0/5)
- Justice Neil Gorsuch (4/5)
- Justice Brett Kavanaugh (5/5)
Obviously these numbers are nothing but an anecdotal example, but stay with me. If you split that by partisan appointment, my select group properly identified Republican appointees 23/25 times (92%), but only identified Democrat appointees 3/15 times (20%). What accounts for this?
Let's start with the fact that only two of these individuals in my group are self-professed Republicans. One was a Democrat and the other two eschew party politics and consider themselves independent. So the explanation that says my group recognized their own party's nominees falls flat.
Recency bias doesn't really explain the differential either. Yes, Trump appointees were the most recognizable, but Obama's appointees the least. And Clarence Thomas, the longest serving justice, was identified unanimously.
So I dug a little deeper, and want to posit a theory: consider the confirmation circus that surrounded their appointments.
- Justice Thomas: 52-48
- Justice Breyer: 87-9
- Chief Justice Roberts: 78-22
- Justice Samuel Alito: 58-42
- Justice Sonia Sotomayor: 68-31
- Justice Elena Kagan: 63-37
- Justice Neil Gorsuch: 54-45
- Justice Brett Kavanaugh: 50-48
With the exception of Chief Justice Roberts, Republican appointees skirted by Democrat opposition by an average of about 8 votes. Meanwhile, Democrat appointees skated through with an average 47-vote margin.
When Republican presidents make their Supreme Court appointments, the entire DMC (Democrat Media Complex) organizes and mobilizes the opposition.
- Start with the distinguished judge Robert Bork who was denied a seat on the Supreme Court simply because he was a conservative that Ted Kennedy (!) found immoral, unleashing an unconscionably slanderous and scurrilous personal attack on his integrity.
- Clarence Thomas was the victim of a similar attempted high-tech lynching courtesy of Joe Biden himself:
- Samuel Alito was accused of being a racist and misogynist.
- Neil Gorsuch was portrayed as a grave threat to women.
- Brett Kavanaugh was labeled a rapist in one of the most despicable displays of moral bankruptcy the D.C. cesspool has ever produced:
So let's acknowledge the obvious. The reason my colleagues don't remember the left-wing justices is because theirs weren't made household names by the scurrilous, defamatory conduct of opposing senators at their confirmation hearings. Sure, it's true that Republicans strategically denied Merrick Garland hearings or a vote. What did they not do? They didn't accuse him of rape, call him a racist, intimate he was a sexual predator, or drive his family to tears.
Which means in the coming days as the character assassination is unleashed on the next poor soul nominated to serve their country on the bench of the nation's highest court, it's important to remember that it doesn't have to be that way, and it isn't always that way.
Pundits and prognosticators can huff and puff about this being the divisive nature of judicial nominations, but they're wrong. This only happens when Republican presidents nominate justices.