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

By James Fallows

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 The difference is the nomination of Harriet Miers, by GW Bush, which generated enough opposition that it was withdrawn before a vote.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.

This article available online at:

http://www.theatlantic.com/politics/archive/2010/08/partisanship-is-bad-but-the-kagan-vote-is-not-the-proof/61060/