Partisanship Is Bad, But the Kagan Vote Is Not the Proof

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I yield to no one in my despair about the U.S. Senate and the general gridlock of American public life. But I was surprised by this line in today's Politico story, about the Senate's vote yesterday to confirm Elena Kagan to the Supreme Court:

Though it confirmed her Thursday as the newest justice by a 63-37 vote, Kagan has the dubious distinction of receiving one of the lowest total of "yes" votes for a nominee during the past three presidencies -- and the lowest number of confirmation votes ever for a justice picked by a Democrat.

Let's think for a minute about this comparison. "Past three presidencies" takes us back deep into the dawn of time, all the way to the beginning of the Bill Clinton administration. Through that period there had been a total of six nominations before Kagan's, and five confirmation votes. The difference is the nomination of Harriet Miers, by GW Bush, which generated enough opposition that it was withdrawn before a vote. Of the five votes, three were laughers -- 96-3 for Ruth Bader Ginsberg, 87-9 for Stephen Breyer, and 78-22 for John Roberts. One was comfortable but not a runaway, 68-31 for Sonia Sotomayor. And the other was narrower than Kagan's. Samuel Alito got through only 58-42 -- what we would call a "defeat" under the grossly abused "it takes 60 votes to do anything" practice of the modern Senate. So another way to write the paragraph above would be, "of the six nominees preceding Kagan, four went through the Senate with much bigger margins than she did, and two did not."

If we went back one administration further, we would see George H.W. Bush's (unfortunate) nomination of Clarence Thomas getting through by only a 52-48 vote -- again, a "defeat" by modern standards. Before that, Ronald Reagan had one nominee (Douglas Ginsburg) withdraw before a vote, and another (Robert Bork) outright defeated, 42-58. Richard Nixon had two straight nominations also outright defeated, 45-55 for Clement Haynsworth and 45-51 for Harrold Carswell.  

So: the Senate is a broken and dysfunctional institution. Supreme Court nomination procedures have become broken, dysfunctional, cynical, unrevealing, dishonest, and divisive Kabuki spectacles -- as Elena Kagan accurately observed years ago, in the only writing controversial enough that she had to explain it away at her hearings. We're never again going to see anything like the 98-0 vote in favor of Antonin Scalia (!) or 97-0 for Anthony Kennedy, both under Reagan after the Bork/Ginsberg rebuffs -- or the similar unanimous votes for now-retired Justices Stevens and O'Connor. There is reason to feel very bad about the way we confront big public issues -- and the (metaphorical) torture that nominees for any "confirmable" post must now undergo. But I feel a hundred times worse about the partisan dysfunction revealed by, say, the impossibility of considering a climate bill than about the mainly party-line nature of the Kagan vote. Or on a less cosmic scale the partisan stalling that has blocked the consideration of a clearly-super-qualified nominee to the Federal Reserve, even as the economy struggles.  Grrr.

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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

Fallows welcomes and frequently quotes from reader mail sent via the "Email" button below. Unless you specify otherwise, we consider any incoming mail available for possible quotation -- but not with the sender's real name unless you explicitly state that it may be used. If you are wondering why Fallows does not use a "Comments" field below his posts, please see previous explanations here and here.
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