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Vanilla Is the New Flavor for High Court Picks

Bill Clark/Roll Call
Judiciary ranking member Jeff Sessions is leading GOP efforts to vet Elena Kagan’s nomination to the Supreme Court. Kagan’s nomination hasn’t sparked a major firestorm, which seems to be the trend with recent presidential picks for the high court.

Two of the most influential justices ever to sit on the Supreme Court — Thurgood Marshall and Antonin Scalia — probably couldn’t get confirmed to the bench today.

So say scholars and Senators who argue that the high court has turned into such a political battleground that recent presidents now eschew nominating individuals like Marshall and Scalia.

Instead, they argue, presidents are trending in favor of nominees who, like current Supreme Court hopeful Elena Kagan, have spent their lives avoiding controversy.

“I have joked that if President [Barack] Obama nominated Moses, the lawgiver, or Mother Theresa, Senate Republicans would vote against the nomination. Such a willingness of many Republican Senators to heed the extreme ideological test imposed by the far right,” Judiciary Chairman Patrick Leahy (D-Vt.) lamented in a June 7 floor speech.

But even Leahy, no stranger to a partisan brawl or two, faults both parties for the politicization of the Supreme Court confirmation process.

“I’ve encouraged everybody to stop listening to the single-issue groups on the right and the left,” Leahy said in an interview Thursday, adding that the harsh rhetoric that characterizes today’s confirmation debate would make it impossible for justices like a Scalia or Marshall to win Senate approval.

“If that is the case, we ought to suffer for it,” he said.

Sen. Susan Collins (R-Maine), one of the chamber’s leading moderates, said she is particularly concerned about the influence politics and ideology have had on the confirmation process, and fears the atmosphere has typecast today’s high court picks. “That’s particularly true if the individual has been at all provocative. That is the worrisome part for me,” Collins said.

Sen. Arlen Specter (D-Pa.), who has served as both the chairman and ranking member of the Judiciary Committee over his 30-year Senate career, said that as Congress has become increasingly divisive, so has the Supreme Court confirmation process.

“With almost 30 years of experience, my thinking on this subject has evolved and changed. At the outset, I thought the president was entitled to considerable deference, providing the nominee was academically and professionally well-qualified, under the principle that elections have consequences,” Specter said in a recent floor speech.

“With the composition of the Supreme Court a presidential campaign issue, it has become acceptable for the president to make ideological selections. As the Supreme Court has become more and more of an ideological battleground, I have concluded that Senators, under the doctrine of separation of power, have equal standing to consider ideology,” he added.

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