Brandeis, nominated by President Wilson in 1916, was the first Jewish American nominated to the Supreme Court. Before being confirmed, however, the Kentucky native confronted a turbulent confirmation hearing in which he was accused of being unfit (lacking judicial temperament and ethics) by former president Howard Taft and five former presidents of the American Bar Association. Despite the protest, Brandeis was confirmed on June 1, 1916 by a 47-22 vote
John J. Parker, Herbert Hoover’s nominee in 1930 was rejected by two votes when thunderous protests were voiced over his nomination, predominantly by the American Federation of Labor and the NAACP.
On October 2, 1968, Associate Justice Abe Fortas, nominated by Lyndon Johnson to be Chief Justice, withdrew his name for consideration after opponents questioned his acceptance of a $15,000 lecture fee; and was additionally accused of continuing to offer his advice to the president while on the court. Despite withdrawing his name as Chief Justice nominee, Fortas remained an Associate Justice
Clarence Thomas narrowly escaped being rejected by the Senate (52-48) on October 15, 1991, after sexual harassment charges were leaked to the press; and the last nominee to be rejected by the Senate was Robert Bork on October 23, 1987, in a decisive 42-58 defeat.
Bork was attacked vehemently during the hearings for his strict adherence to the “original intent’’ of the constitution, which raised fears if confirmed—the contentious legal scholar would be unsympathetic to civil rights issues and the interests of minorities, along with vote to reverse the 1973 Roe v Wade decision which legalized abortion.
Compared with previous tumultuous confirmation hearings, it’s easy to see, then, why Judge Sotomayor shouldn’t have too much of a struggle winning confirmation with a strong Democratic majority behind her; and with a legal resume that doesn’t seem to quit, including having served as a judge on the United States Court of Appeals for the Second Circuit since October 1998, with additional experience as a city prosecutor and a corporate litigator
This is not to suggest that the South Bronx native won’t run into a couple of bumps along the way before her confirmation vote.
One issue, the first Hispanic nominee to the nation’s highest court will have to contend with early on during the hearings is her highly publicized comments she made at the University of Berkeley, in which she said a “wise Latina’’ could make better decisions than a white man. The other issue she’ll have to defend is her decision to vote with the majority in the Second U.S. Circuit Court of Appeals in the controversial Ricci v. DeStefano case which promoted African-Americans and one Hispanic even though white firefighters scored higher on an exam. The Ricci case has become even more relevant to her confirmation hearings since the U.S Supreme Court recently overturned the Second U.S Circuit Court in a 5-4 decision.
While most Supreme Court observers are expecting a few early fireworks over these issues, most agree the Republicans aren’t in much of a position to block Sotomayor’s nomination.
Robert Gordon, Professor of Law and Legal History at Yale Law School, observed that “even her [Sotomayor's] most controversial opinions are those of panels with Republican-appointed judges; and in virtually every case Sotomayor is revealed to be a cautious, centrist judge, very deferential to Supreme Court and Second Circuit precedent.’’
Another body of opinion suggests that even though Republican’s lack the ammunition to obstruct Sotomayor’s nomination; they still want to make the most of this tailor-made media frenzy forum to grill the nominee on issues that play to their constituents, such as with gun owner’s rights, property rights, international law and affirmative action
As David Greenberg, associate professor of History and of Journalism & Media Studies at Rutgers University tells me; “I imagine there will be a lot of verbal antagonism and posturing on Sotomayor. The confirmation hearings have become a ritual in this regard. But I think many Republicans will support her and she will be confirmed rather handily. That is, unless there emerges something about her – something more “scandalous” than any of her mildly controversial comments unearthed thus far – that we don’t yet know about.’’
-Bill Lucey
***
Footnotes About U.S. Supreme Court Nominations• The process for nominating a Supreme Court Justice rests with Article II, Section 2, clause 2 of the Constitution which states that the President “shall appoint…Judges of the Supreme Court.''
• Since 1789, 12 Supreme Court nominees have been rejected; 11 withdrew; and seven declined to serve.
• On December 15, 1795, John Rutledge became the first U.S. Supreme Court nominee rejected by the Senate during George Washington’s administration
• Prior to 1916, the Judiciary Committee considered Supreme Court nominations behind closed doors. Since 1946, practically all nominees have undergone public confirmation hearings.
• After President Washington with a record 14 nominations, 12 of whom were confirmed, the next highest were John Tyler and Franklin Roosevelt with nine nominations. Only one of Tyler's nominations were confirmed; FDR had all nine confirmed
• William Howard Taft had a record six nominations during one term, all of them were confirmed
• In 1925, Harlan F. Stone became the first Supreme Court nominee to appear in person, which included his personal testimony.
• Beginning in 1967, every Senate vote on whether to confirm a Supreme Court nominee had been by roll call votes. Prior to the that, confirmation were sporadically conducted by voice vote or unanimous consent
• The longest time elapsing between Senate receipt and the first day of confirmation hearings was 82 days, for the nomination of Potter Stewart in 1959
• 12 times in our nation's history, presidents have made temporary recess appointments without submitting nominations to the Senate.
• The last former member of Congress to serve on the Supreme Court was Hugo Black who retired in 1971
• Prior to President Obama’s nomination of Sonia Sotomayor, 39 presidents have made nominations to the Supreme Court; totaling 158 nominations, 122 of those received Senate confirmation.
• Six individuals whose initial nominations were not confirmed were later re-nominated and confirmed to positions on the Court
Source: Congressional Research Service; U.S. Senate Historical Office
***
Websites to keep in mind:
Judge Sonia Sotomayor Biographical Sketch (From the White House)
A case-by-case examination of the sentences imposed by Judge Sonia Sotomayor during her six years as a trial judge in the Southern District of New York by The Transactional Records Access Clearinghouse (TRAC) at Syracuse University
Brennan Center for Justice (Judge Sotomayor’s Record in Constitutional Cases)
The American Bar Association’s rating of Judge Sotomayor
Legal Resources relevant to Sonia Sotomayor from the Library of Congress
Senate Committee on the Judiciary: Supreme Court Nomination Hearings (1971 – forward from the U.S. Government Printing Office
Supreme Court Nominations, 1789-present from the U.S Senate’s Office)
Members of the Supreme Court of the United States
Supreme Court Nominations – Not confirmed or withdrawn (From the Library of Congress)
The History of the U.S. Supreme Court from the Supreme Court Historical Society
History of the U.S. Supreme Court (from the United States Senate Committee on the Judiciary)
Leave a Reply