What does a Democratic Senate mean for the Supreme Court?

A sobering reminder: Democrats controlled the Senate when Clarence Thomas was confirmed in 1991.

Tim Grieve
November 9, 2006 9:32PM (UTC)

Not to get all Adam Nagourney on anybody, but here's a sobering reminder for anyone who might be thinking that Democratic control of the House and Senate will be the blossoming of all things bright and beautiful: In 1991 -- when Democrats held a much larger majority in the Senate than they will now -- Clarence Thomas was confirmed as an associate justice of the U.S. Supreme Court.

Eleven Democrats crossed over to vote for Thomas in '91. Ten of them are gone, and the 11th -- Alabama's Richard Shelby -- has long since become a Republican. Could another Clarence Thomas make it through the Democratically controlled Senate in 2007? Well, there will probably never be another nominee quite like Clarence Thomas -- we'd like to think that pubic hairs on Coke cans are what the lawyers call sui generis -- but it's worth noting that 22 Democrats voted to confirm John Roberts as chief justice last September. Only four Democrats joined the Republicans in voting to confirm Samuel Alito to the court in January, but a lot more of them balked on the cloture vote that gave them their last clear shot at stopping a nominee who was pretty obviously opposed to abortion rights.


The good news for Democrats? With any luck, they won't have to be thinking next time about mounting filibusters or hoping and praying for the never-seem-to-come-when-they-count crossovers from the likes of Arlen Specter. The bad news? While the Thomas 10 may be gone, there are still plenty of deferential Democrats in the Senate. And while a hard-line conservative nominee may not be able to make it out of a Senate Judiciary Committee controlled by Democrats and chaired by Patrick Leahy, the red-to-blue switches that just occurred in Rhode Island and Pennsylvania won't necessarily help much if such a nominee were to make it to the Senate floor.

How would it all play out? A lot depends on the kind of justice a post-wave president decides to nominate next. Will George W. Bush surprise us all with the kind of uniting-not-dividing approach he has long promised but never delivered, or will he keep sending up nominees "in the mold" of Thomas and Antonin Scalia? We may know more sooner rather than later: Justice John Paul Stevens is 86 years old, and he could well decide soon that he has to -- or that it's safe to -- step down from the bench.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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