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PDF Editor FAQ

Did this whole Supreme Court battle start with Obama's SC nomination (Garland) or is it older than that?

It started waaaaaaaaay before Garland.In fact, you need to look all the way back to the beginning with the Judiciary Act of 1789.Washington nominated 6 justices, all were confirmed by the Senate.What I find interesting is there were people who actually declined the nomination in those early years.However, after Washington, political parties started to take hold and with Madison, the 4th President, first elected in 1808, politics became the driving force for the court.In 1811, a justice was rejected by the Senate in a vote of 9–24. That was the first time a justice has been rejected.In 1828, a justice vote was postponed and never rescheduled.Prior to the civil war, it got really heated.In 1844, a justice was rejected and another was withdrawn.In 1845, another justice was withdrawn.However, in 1845, the political lines were drawn and the parties dug in. Justice nominee John M Reed received no action whatsoever from the Senate. So, if anyone says to you, “Garland is the first and it was unprecedented!”. they would be completely wrong. Reed, in 1845 was the first nominee where the Senate refused to vote.Also in 1845, another nominee was rejected.Like Reed, in 1852 the Senate refused to vote on a nominee.Likewise, in 1853, another nominee had the vote postponed and it was never rescheduled.Also in 1853, ANOTHER justice received no action from the Senate.You get the idea. If you think it’s bad today? Back then…well…seven years later there was a civil war. That tells you what you need to know about these times.This went on pretty steadily until 1894.Between 1894 and 1968, only one nominee was rejected.From 1968 to today, 5 nominees were either rejected, withdrawn or received no vote from the Senate.That’s a historical look.But, I think you’re looking for something more current as to the reasons why it is so contentious. I can certainly give you a much more specific answer, which is what I think you really want to know.So, here it is —-In 1973, during the height of the Watergate scandal/investigation, Nixon ordered the Attorney General to fire special prosecutor Archibald Cox. The AG refused and resigned instead.Immediately after the resignation, Nixon ordered the Deputy Attorney General to fire Cox. The DAG also refused and resigned.Immediately following that resignation, Nixon went looking for someone in the Justice Department to fire Cox. The Solicitor General would fire him. So Nixon appointed the SG to Attorney General and Cox was fired.It has been said that Nixon promised that Solicitor General/Attorney General a SCOTUS nomination. That did not materialize during Nixon’s Presidency. Nor did it happen during Ford’s or Carter’s Presidency. Nor, did it happen during Reagan’s first term.But in 1987, during Reagan’s second term, that former Solicitor General/Attorney General was nominated to the Supreme Court.Democrats were furious. Ted Kennedy especially. Kennedy openly stated he would destroy that nominee and destroy Republicans for daring to nominate that person.Who was this person?Robert BorkReagan still had nominated and confirmed four other justices during his two terms: Sandra Day O’Conner, Rehnquist, Scalia and Kennedy (after Bjork).But, during Bork’s hearing, Ted Kennedy gave a 45 minute speech that completely and total smeared Bjork as a person. Kennedy said, in part:“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”Republicans were livid with the personal attacks and publicly stated there was no place for them during the hearings.Bork was rejected, 42–58.Reagan’s successor, Bush 41, nominated two justices during his one term as President; Souter and Thomas.It had only been 3 1/2 years, but like Bork, Democrats went after Thomas. Again, Democrats made it immensely personal.The difference here is that Thomas fought back. During the hearings Thomas said on national TV, during Prime Time, I believe:“This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”Bravo Clarence Thomas.I was beyond ecstatic he had the courage to say that to the Senate Judiciary Committee on national TV.Thomas was confirmed on October 15, 1991, by a vote of 52–48, which did not sit well with Democrats. Not at all.It was during this same time that the Democrats and the Senate Judiciary Committee refused to give 52 of Bush 41s judicial nominees, hearings. They refused to hold hearings, let alone vote.Just barely three months later on January 27, 1992, Bush 41 nominated John Roberts — yes, future Supreme Court Justice John Roberts — to the US Court of Appeals for the District of Columbia. Roberts was immensely qualified and should have been confirmed without question. Biden was on the Senate Judiciary Committee, which was controlled by Democrats and headed by Leahy, a Democrat.Guess what Biden/Leahy did?They refused to hold hearings on Robert’s nomination. As a result Bush 41 withdrew Roberts from consideration. were furious.Then, on June 25, 1992, less than five months after Roberts and eight months after Thomas’ confirmation, Joe Biden made the following remarks, and I’m going to paraphrase but put a link to the speech:"…should a justice resign this summer and the president move to name a successor…the Senate…should seriously consider not scheduling confirmation hearings on the nomination . . . until after the political campaign season is over.”In Context: The 'Biden Rule' on Supreme Court nominations in an election yearSince Biden/Leahy already had shown they would not hold hearings, because of what had happened to Roberts, Republicans took them at their word. Which was now public knowledge because of Biden’s speech.If you want a moment when SCOTUS/Judicial nominations became wars?This was it.Unexpectedly, Clinton won the Presidency in 1992. During his two terms, he nominated two justices, Ginsberg and Breyer. Both sailed onto the court with votes of 96–3, and 87–9. Republicans did not stand in the way of these nominees. In fact, they voted them onto the court in convincing fashion.Then Bush 43 became President. His first SCOTUS nomination? John Roberts. Roberts was confirmed 78–22.Bush 43 nominated two other justices, one which he had to withdraw. In all fairness, I don’t think Harriet Miers was a good choice for a variety of reasons.But, Alito, the replacement to Miers, was good nominee and he was confirmed by a vote of 58–42.But, in 2007, Chuck Schumer (D), who was Chairman of the Senate Judiciary Committee, gave a speech where he repeated what Biden had said and threatened to not give any of Bush 43s nominees to the Supreme Court hearings, unless the circumstances were extraordinary.So, Biden said it and Schumer again said it.After Obama became President, he nominated Sotomayor and Keagan, both were confirmed with votes of 68–31 and 63–37.Then, Obama nominated Garland.Republicans pointed out that Biden had said there should be no nominations once the elections got under way. The fact Biden/Leahy had actually practiced that “rule” with Roberts’ nomination to the DC Court of Appeals proved that Democrats were willing to not vote on nominees during the election years. Not to mention that Schumer had also said it during Bush 43s Presidency.But, after Republicans pointed this out and refused to vote on Garland, it should be no surprise that Democrats were saying there was no such rule.Joe Biden explains why Senate Republicans citing the 'Biden rule' is 'ridiculous'As a side note, what most people don’t know is that McConnell has been in the Senate since 1985 and Biden first took his Senate seat in 1973.Both of these guys have been around for all of this. They both remember it. I believe it’s a bit personal for both of them.So, what we are seeing today is a direct result of the Bork and Thomas hearings, the Roberts ‘no vote’ and Biden’s speech.Hopefully that’s more in line with what you hoped to get as an answer to this question.

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