Senators of both parties grasp the unfortunate reality that no vote is more likely to crash their reputation with their base voters than supporting a Supreme Court nominee of the other party. SCOTUS nominations have become proxies for the entire range of hot-button issues that animate American partisanship, from abortion and guns to immigration and voting rights.
This phenomenon has accompanied the plunge in bipartisanship during the internet age. Through the end of the 20th century, Senators voted according to a presumption that Supreme Court nominees deserved confirmation unless they were unqualified or afflicted with a scandal, a conflict of interest, or a deep character flaw. Some historians point to the 1987 nomination of Robert Bork as the pivotal event in the politicization of Supreme Court confirmations. But the Bork experience did not change voting norms. Justices Kennedy (1988), Souter (1990), Ginsberg (1993), and Breyer (1994) were all confirmed with fewer than ten dissenting votes.
The vote on Justice Thomas (1991) was the exception that proved the rule. Despite facing sexual harassment accusations, he was confirmed 52-48, with eleven Democrats voting for him. Democrats had the numbers and a justification for blocking him. Yet, the norm of confirming justices was still so strong that Democrats supplied the crucial votes to pass a highly controversial Republican nominee.
The vote on Chief Justice John Roberts (2005) represented the pivot to the impending partisan attitude toward Supreme Court nominees. He was confirmed 78-22 with virtually no one questioning his credentials or temperament. Twenty-three Democratic Senators voted for him, but 22 others voted “No.”
Over the course of the next six Supreme Court nominations (2006 to 2020) the opposition party in the Senate has had a chance to cast 269 votes. Of those, just 22 were cast in favor. But even that small number fails to quantify the deep politicization of SCOTUS nominations. Twelve of the 22 “crossover" votes were cast by Democratic and Republican Senators who represented states that voted for the opposite party’s presidential nominee by at least ten points in both the preceding and subsequent presidential elections. This group included all four Democrats who voted for Samuel Alito (2006), all three Democrats who voted for Neil Gorsuch (2017), and Joe Manchin who voted for Bret Kavanaugh (2018). It also included Maine Republicans Susan Collins and Olympia Snowe, both of whom voted for Justices Sotomayor (2009) and Kagan (2010).
Of the ten remaining crossover votes, five were cast by four Republicans (for Sotomayor or Kagan) who were either declared lame ducks or were contemplating retirement. Each of those members — Mel Martinez, George Voinovich, Kit Bond, and Judd Gregg (two votes) — did retire from the Senate. None of them ran for statewide office again.
That leaves just five votes — fewer than one per confirmation— that were cast in favor of the opposite party’s nominee by Senators who were running for re-election and did not represent states with a heavy voting bias favoring the other party. And those five votes were cast by just three Senators — all Republicans. Lamar Alexander voted for Sotomayor in 2009, though a year later, he voted against Kagan. Finally, Dick Lugar and Lindsay Graham — both representing red states and still running for office — voted for both Sotomayor and Kagan.
Lugar’s reasoning was straightforward. He viewed both candidates as well-qualified and free of conflicts of interest or disqualifying character flaws. Under the non-partisan standard that had applied to Court nominees of both parties for many decades, they deserved to be confirmed. During his 2012 losing primary, he refused to recant those votes, despite their unpopularity with Republican primary voters, explaining that he believed a depoliticized judiciary was essential to the country. He understood that the courts were far more likely to become partisan entities if the process of confirming judges was reduced to a zero-sum power struggle between Republicans and Democrats.
The number’s show that Lugar’s principle has not prevailed in either party. Graham is the only current Republican Senator from a red state who cast a vote for an Obama SCOTUS nominee. No Democratic Senator from a blue state — current or retired — cast a vote for any of the four Republican SCOTUS nominees that followed John Roberts in 2005. Crossover votes on Supreme Court nominees are viewed as a political “third rail,” as dangerous as cutting Social Security. Self-preservation, not principle, now rules Senators’ decision-making on SCOTUS nominees.