History says GOP's court fight will be futile

It will probably take a scandal to derail President Obama's next Supreme Court pick -- whoever it is

Published April 9, 2010 4:10PM (EDT)

John Paul Stevens' announcement on Friday that he'll stand down from the Supreme Court after nearly 35 years was hardly a surprise. Nor was the immediate response from Republicans. Mitch McConnell, the Senate GOP leader, pledged to use the forthcoming confirmation process to "make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law."

As Salon's Mike Madden has already noted, "That doesn't sound like code for, 'Go ahead, Mr. President, don't let us get in your way.'"

Still, history says it will be just about impossible for the GOP to thwart whomever President Obama tabs as Stevens' successor -- unless some sort of personal scandal erupts.

Only one nominee in the last 25 years has been defeated by the Senate: Robert Bork, a conservative hero nominated by Ronald Reagan in the summer of 1987. A hero to the right, Bork had left an extensive paper trail of highly provocative (and very conservative) opinions about sensitive subjects, particularly the right to privacy. The left mobilized to stop him and, with Reagan's clout diminished by the then-unfolding Iran-Contra scandal, the Democratic Senate rejected Bork on a 58-42 vote. (One Republican, Arlen Specter, also voted no.)

Otherwise, recent nominees who have been targeted on purely ideological grounds have all survived. The closest call came in 2006, when Samuel Alito, George W. Bush's pick to replace Sandra Day O'Connor, survived on a 58-42 vote. All but four of the chamber's Democrats (Robert Byrd, Kent Conrad, Tim Johnson and Ben Nelson) voted against Alito; and all but one Republican (Lincoln Chafee) voted for him.

A similar dynamic was at work last year, when Republicans were largely united in opposing Sonia Sotomayor, Obama's choice to succeed David Souter. Nine of them ended up defecting to support the nominee, who (thanks to unanimous Democratic support) was confirmed by a 68-31 tally.

There's no reason to think Obama's nominee to replace Stevens will fare much differently. Republicans control only 41 Senate votes right now, so it would take 10 Democratic defections to upend his pick. And recent history shows that a nominee only loses support from members of the president's party when some sort of personal issue crops up.

This, for instance, is what forced Reagan to withdraw his 1987 nomination of Douglas Ginsburg, who frightened Republicans with his admission that he'd smoked marijuana as a college professor. (Reagan had chosen Ginsburg only after Bork's nomination was defeated.) And it's what caused George W. Bush to pull the plug on Harriet Miers in October 2005, when even Republicans concluded that she lacked the basic intellectual and professional credentials necessary for the job.

There's also the case of Clarence Thomas, whose 1991 confirmation hearings were famously jolted by charges of sexual harassment. But Republican senators -- and a critical number of Democrats, who controlled the chamber -- stuck with George H.W. Bush's pick anyway, and Thomas survived on a 52-48 vote.

Right now, there's no reason to think the final tally on Obama's choice will be nearly as close.

By Steve Kornacki

Steve Kornacki is an MSNBC host and political correspondent. Previously, he hosted “Up with Steve Kornacki” on Saturday and Sunday 8-10 a.m. ET and was a co-host on MSNBC’s ensemble show “The Cycle.” He has written for the New York Observer, covered Congress for Roll Call, and was the politics editor for Salon. His book, which focuses on the political history of the 1990s, is due out in 2017.

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