Committee, documenting their views on the state of the confirmation process. The results reflected broad bipartisan agreement that the confirmation process has come under severe strain from partisan conflict, though Republican and Democratic staffers disagreed about the causes of the strain. Democrats cited the controversies surrounding the nominations of Judge Garland and Justice Barrett as evidence of Republican bad faith and disregard of longstanding norms. Republicans cited the hearings on the nominations of Judge Bork, Justice Clarence Thomas, and Justice Kavanaugh, and blamed Democrats for personal attacks on nominees designed to derail nominations for partisan or ideological reasons.[19]
The recent history of Senate confirmation votes supports witnesses’ accounts of escalating partisanship. For seventy years until 1968, most Justices were confirmed by voice vote. Since then, roll call voting has become the norm, and votes have divided increasingly along party lines.[20] Justice Sonia Sotomayor received 68 votes (all Democrats and nine Republicans voting to confirm); Justice Elena Kagan, 63 (all but one Democrat and only five Republicans voting to confirm); Justice Gorsuch, 54 (all Republicans and only three Democrats voting to confirm); Justice Kavanaugh, 50 (all Republicans and just one Democrat voting to confirm); and Justice Barrett, 52 (all but one Republican and no Democrat voting to confirm).
To be sure, over the last fifty years, some nominees have received significant bipartisan support. Some of those nominations—including Justice Scalia (confirmed in 1986 with 98 votes), Justice Ginsburg (confirmed in 1993 with 96 votes), and Justice Stephen Breyer (confirmed in 1994 with 87 votes)—occurred when the Senate was controlled by the President’s party. Others—including Justice Kennedy (confirmed unanimously in 1988, an election year, after Judge Bork’s nomination was rejected) and Justice David Souter (confirmed in 1990 with 90 votes)—occurred when the Senate majority was not aligned with the President. Unmistakably, however, the trend over the last three decades has been toward more partisan conflict, which has affected nominations to the lower courts as well as to the Supreme Court.
The confirmation battles of recent years have given rise to multi-million dollar lobbying campaigns seeking to mobilize public pressure for or against particular nominations. Millions of dollars were spent for and against the nominations of Justices Kavanaugh and Barrett.[21] There is little reason to doubt that nominations will continue to trigger expensive campaigns to shape public opinion and pressure undecided Senators to vote in a particular way. Indeed, when vacancies arise, political and interest group allies now expect the President to thoroughly vet nominees for their substantive views in an effort to ensure that the nominee will advance the desired ideological outlook. Presidents are also expected to nominate individuals who, if
