As the Democrats announce their votes on John G. Roberts — you can now put Dick Durbin and Chuck Schumer in the “no category” — they’re getting lectures from Senate Republicans who say they’re applying to George W. Bush’s nominee a standard higher than that which they used in confirming judges in the past. South Carolina Sen. Lindsey Graham, noting that Antonin Scalia was confirmed by a vote of 98-0 in 1986, said earlier today: “There’s no way that Roberts is more conservative than Scalia. There’s no way that Scalia is more challenging and in-your-face than Scalia was.”
Of course, Scalia wasn’t particularly “challenging” or “in-your-face” during his confirmation hearings. While Scalia came into his confirmation hearings with a reputation for expressing bold opinions from the bench, the Associated Press noted the other day that he was a “model of restraint” as he took questions from the Senate Judiciary Committee: “The opening hours of the hearing were so free of confrontation that [Sen. Joseph] Biden prodded Scalia, saying, ‘Let yourself go. It’s pretty boring so far.’ Scalia, who conceded he was trying to avoid controversy, told the senators: ‘I assure you I have no agenda. My only agenda is to be a good judge.’” (If those words sound familiar, it’s because Roberts uttered almost exactly the same ones during his own confirmation hearings.)
Why were the Scalia hearings so lacking in fireworks? One theory is that the Senate had just shot off everything it had during the contentious hearings on William Rehnquist’s elevation to chief justice. For all the Republican grumbling today about the yes votes other justices have received — Stephen Breyer was confirmed 87-9, Ruth Bader Ginsburg 96-3, David Souter 90-9, Anthony Kennedy 97-0, Sandra Day O’Connor 99-0 and John Paul Stevens 98-0 — it might be appropriate to mention that Rehnquist was confirmed as chief justice by a vote of just 65-33.
Roberts appears to have about 62 votes now, and he’ll likely get at least a few more from Democrats before the counting is done. That’ll put him way ahead of Clarence Thomas (who was confirmed by a vote of 52-48), in the same league as Rehnquist and not far off from Rehnquist’s predecessor, Warren Burger, who got 74 yes votes (but only three no votes) when Richard Nixon named him chief justice in 1969. And whatever number Roberts ends up getting, it will be a whole lot more than the last Democratic nominee for chief justice received: Lyndon Johnson had to withdraw Abe Fortas’ nomination as chief justice in 1968 after the Republicans led a filibuster against him.