What are we to make of the fact that only 9 of 40 Republican Senators voted to confirm Justice Sotomayor? Here I'll run a few numbers and then float a hypothesis. For simplicity, let's define the President's party as the "ruling" party and the other party as the "opposition," even in years when the "opposition" has a majority of seats in the Senate. Given the first mover advantage, even when the President's party has been in the minority in the Senate, the President has nominated Justices who were either left of center (Dem Pres) or right of center (Repub Pres).
We should note that over the last few decades, it is simply not the case that most members of the opposition party have opposed nominations. Looking at nominations since 1975 (except for the withdrawn cases of Judge Douglas Ginsburg and Harriet Miers), we see that most were confirmed with strong to unanimous support of the opposition party:
Stevens, 1975, 98-0
O'Connor, 1981, 99-0
Scalia 1986, 98-0
Then came the defeat of the Bork nomination, which is often portrayed as a watershed, but in fact, in its immediate aftermath, the general pattern reasserted itself:
Kennedy, 1988, 97-0
Souter, 1990, 90-9
The next major event was the very narrow confirmation of Justice Thomas, in 1991, by 52-48, but 11 of the yea votes were Democrats. Moreover, Thomas was a special case for at least three reasons: 1) He was a very conservative African American who had been outspoken in criticizing traditional civil rights organizations, named to replace the historically significant Thurgood Marshall; 2) In the first portion of his hearings, Thomas came across as evasive, especially in distancing himself from positions he had taken on abortion; and 3) The sexual harassment charge by Anita Hill made the whole process a one-off event.
And then things went more or less back to normal:
Ginsburg, 1993, 96-3
Breyer, 1994, 87-9
Things began to change with the Roberts nomination.
Roberts, 2005, 78 – 22
And the change became very evident with the Alito nomination.
Alito, 2006, 58 – 42
The dramatic increase in the number of opposing Senators is very difficult to explain. Roberts and Alito are both quite conservative, but Alito is not substantially more conservative than Roberts, and neither is substantially more conservative than Scalia (nor even that much more conservative than Souter might have looked before we really got to know him). Roberts played a bit better than Alito on tv, but that should hardly account for 20 Senators. Perhaps we can further explain the change by the fact that President Bush's poll numbers were in free-fall during the period between the Roberts nomination and the Alito nomination. In addition, the substitution of Roberts for Rehnquist could have been read as a wash, while the substitution of Alito for O'Connor made the stakes appear higher.
In any event, what the votes on Alito, to a lesser extent Roberts, and Sotomayor suggest is that we have entered a new period in which even conventionally highly qualified candidates will be challenged by the majority of the opposition party. I read the opposition to Sotomayor as even more dramatic than the opposition to Alito because I regard Sotomayor as moderately left of center whereas Alito is strongly conservative (though still in the mainstream of legal elites). But I'm willing to set that view aside (in part because I suspect conservatives would not share it), and just focus on the larger trend: Going forward, Presidents may be unable to depend on any substantial opposition party support for their nominees.
In times when the President's party is in the minority in the Senate, this could lead to gridlock. Imagine a Republican President with only 42 Republican Senators. He could get a moderate liberal nominee through the Senate, but only at the cost of a rebellion from his own party. And if current trends continue, he could not get a conservative nominee through.
Now, I'm not actually predicting gridlock. There are institutional pressures for Presidents and Senators to work out accommodations. We might also regard the widespread Republican opposition to Sotomayor as a kind of payback for Democratic opposition to Alito. It's also true that because of the Ricci case and the "wise Latina" speeches, the Sotomayor nomination put in play one of the few issues on which Republicans have a political advantage: identity politics and racial preferences. And the fact that Sotomayor was certain to be confirmed anyway made this a kind of freebie for Republicans.
But all of that has to be weighed against the potential damage Republicans were doing to themselves with Latino voters. This leads me to think that we really are seeing a shift in which most of the opposition party simply opposes nominees. If so, then a President with a strong majority in the Senate should feel liberated to name an ideologically potent candidate. In concrete terms, if a super-majority of Republicans will vote against a moderate like Sotomayor, Pres. Obama loses nothing by naming a real liberal. Which is not to say, alas, that this is what he'll do with his next pick.
Posted by Mike Dorf