The first portion of Supreme Disorder explores the history of Supreme Court nominations since George Washington. Nomination controversies aren’t new, and presidents throughout the history of the republic have had nominees rejected by the Senate. These fights were sometimes partisan, as when the defeated Federalists and John Adams passed the Midnight Judges Act during their lame duck tenure to rapidly create and fill new judgeships before the inauguration of Thomas Jefferson. In most cases, however, disputes were about geographic concerns, and presidents were usually less concerned with appointing ideologues who agreed with their policy agenda. Many nominations sailed through with little to no debate on voice votes.
One aspect of these fights is very modern: high‐profile and contentious public hearings in the Senate Judiciary Committee. As Shapiro explains, “The Senate didn’t even hold public hearings on Supreme Court nominations until 1916… . It wouldn’t be until 1938 that a nominee testified at his own hearing. In 1962, the part of Byron White’s hearing where the nominee himself testified lasted less than 15 minutes.” As recently as Ronald Reagan’s nomination of Antonin Scalia in 1986, the nomination provoked no opposition on the Judiciary Committee and was unanimously approved by the Senate with little debate.
The modern era of escalating partisan politics in Supreme Court nominations began with the Senate’s rejection of Reagan nominee Robert Bork. Senate Democrats launched an attack on Bork’s conservative and originalist judicial philosophy with dire warnings of the possible policy results. Sen. Edward M. Kennedy (D-MA) decried an America where “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, school children could not be taught about evolution, [and] writers and artists could be censored at the whim of [the] government” if Bork was confirmed.