Op-Ed: A history of major moments in politicized court nominations

A list of major politicized court nominations over the last 80 years, a history leading up to the Supreme Court nomination of Brett Kavanaugh.

This piece is part of a series on what’s next for the Supreme Court. Click here to read more.

1937 | FDR tries to pack the court

President Franklin D. Roosevelt, frustrated that the court overturned several pieces of New Deal legislation 5 to 4, tries to add as many as six more justices to the Supreme Court. After much strife, the Senate kills his court-packing bill.

1967-68 | Pushing back against the Warren court

A series of rulings under Chief Justice Earl Warren — including desegregating schools, prohibiting prayer in school, expanding the rights of the accused — spurs conservatives to go after President Lyndon B. Johnson’s nominees. An alliance of Republicans and Southern Democrats tries to paint Thurgood Marshall as unqualified in 1967, but he is confirmed. The next year the promotion of liberal Abe Fortas from associate to chief justice is at stake. It is revealed that Fortas was paid large speaking fees funded by private companies. After a four-day filibuster, Johnson withdraws the nomination.

1969-70 | Payback

When it comes out that Fortas had accepted other payments as well, he resigns rather than face impeachment. Then Democrats sink President Nixon’s first two choices to replace him — both Southerners — in part by pointing to ethical missteps and stances on civil rights. It is still seen as out of bounds to oppose a candidate for his legal or political ideology, but the list of other disqualifying sins grows longer.

1973 | Roe vs. Wade

The court rules 7 to 2 that unduly restricting or criminalizing abortion violates the right to privacy implicit in the 14th Amendment. Nomination battles get more fierce, especially when Republicans appear poised to line up a court majority that would overturn Roe vs. Wade.

1987 | Robert Bork nomination

President Reagan nominates Bork, a former federal judge and conservative legal theorist. Democrats object to his record opposing gender equality, civil rights laws and the right to privacy. Sen. Ted Kennedy of Massachusetts leads the charge, and Bork’s nomination is defeated 58 to 42. The term “borked” is coined.

1991 | Clarence Thomas confirmation

Thomas’ nomination seems assured until Anita Hill’s testimony that he sexually harassed her becomes public. Thomas eventually is confirmed 52 to 48, at the time the narrowest margin in a century. Hill’s harsh treatment by the all-male Senate Judiciary Committee inspires the Year of the Woman in 1992, the first time four women were elected to the Senate in one year.

2000 | Bush vs. Gore

After this Supreme Court ruling decides who becomes president, America’s politics become increasingly polarized. Instead of confirmation votes that were nearly unanimous, nominees begin receiving more “no” votes in a closely divided Senate: John G. Roberts, 22; Samuel Alito, 42; Sonia Sotomayor, 31; Elena Kagan, 37; and Neil Gorsuch, 45.

2002 | Filibustering Bush’s appellate nominees

Democrats stage the first-ever partisan filibuster of a nominee to a federal appeals court, Miguel Estrada. Estrada was filibustered seven times and withdrew his nomination in 2003.

2013 | Senate weakens filibuster rule

The Democratic-controlled Senate reduces the threshold from 60 votes to 51 votes for approval of executive and judicial nominees to fill spots on the federal bench. The change, called “the nuclear option,” doesn’t yet apply to the Supreme Court.

2016 | Ignoring Merrick Garland

Justice Antonin Scalia dies on Feb. 13. The next month, President Obama nominates Merrick Garland. Senate Majority Leader Mitch McConnell (R-Ky.) refuses to hold any hearings and keeps the seat vacant until after the presidential election.

2016 | Trump reveals his short list

To reassure Republicans wary of letting an unpredictable Donald Trump pick Scalia’s successor, the then-candidate releases a short list of 11 potential nominees pre-vetted by the arch conservative Federalist Society. It’s the first time a candidate has publicized such choices during an election.

2017 | Going nuclear to confirm Neil Gorsuch

Democrats wage a filibuster against President Trump’s nominee, Neil Gorsuch. The Republican-controlled Senate deploys the nuclear option and, on a party-line vote, removes the Supreme Court exception created in 2013. Gorsuch is confirmed 54 to 45 the next day.