Among the nomination contests still debated today is President Ronald Reagan’s failed attempt to place Judge Robert Bork on the Supreme Court in 1987. Judge Bork’s supporters contended that he was a highly qualified nominee who was subjected to deceptive and inflammatory partisan criticism; his record and views, supporters claimed, were mischaracterized by his opponents. Defenders of the Senate’s treatment of Judge Bork, by contrast, argued that he received an extensive hearing at which he had an opportunity to present and defend his views at length, and that his nomination failed by a bipartisan majority vote after a floor debate because of fundamental and legitimate disagreements with his legal views and judicial philosophy.
Three recent nominations have generated especially bitter partisan conflict. We explore those nomination battles in greater detail in Chapter 2 of this Report but note them here because of their role in the debates leading to the formation of this bipartisan Commission. First, after Justice Antonin Scalia died in February 2016, the Republican majority in the Senate refused to consider President Barack Obama’s March 2016 nomination of Chief Judge Merrick Garland to fill that seat. The Republican Senate leadership argued that the nation was poised in a matter of months to elect a new President, who should be able to appoint Justice Scalia’s successor. It thus declined to take any formal action, such as a hearing or a vote, on the Garland nomination. President Donald Trump later appointed Judge Neil Gorsuch to fill the vacant seat. Next, in the summer of 2018, Justice Anthony Kennedy—widely viewed as occupying the Court’s ideological center—announced his retirement. President Trump then nominated Judge Brett Kavanaugh, whom the Senate confirmed in October 2018 after contentious hearings and floor debate. Finally, Justice Ruth Bader Ginsburg died in September 2020, creating another election-year vacancy. Although the Senate’s Republican majority had opposed the election-year confirmation of Judge Garland for nearly eight months before the 2016 election, this time it took up President Trump’s nomination of Judge Amy Coney Barrett and confirmed her in one month, on October 26, after voting in the 2020 presidential election had already commenced. Senate Democrats participated in the Judiciary Committee hearings and final vote on Justice Barrett’s nomination, but most declined individual meetings with her, and the Democrats on the Judiciary Committee boycotted the final committee vote to express their objection to the timing of the nomination.
These events directly motivate some of the current calls for Supreme Court reform by those who argue that the seats previously occupied by Justices Scalia and Ginsburg were “stolen” by Republicans from Democrats. According to these critics, Republicans achieved the current conservative dominance of the Court by disregarding the norms that should govern
