Blue State Blues? Kavanaugh Is Nothing New…


Feeling blue about the Kavanaugh confirmation? Me, too. But let’s not join the goofs who keep saying that this is some sort of unprecedented act of naked partisanship. Let’s not listen to writers like this who call Justice Kavanaugh “patient zero” spreading “virulent political fevers” to a once-staid SCOTUS. We don’t have to dip far into SCOTUS history—we don’t even have to mention the words “Warren” or “Watergate”—to notice that Kavanaugh’s brand of bare-knuckled political judgeship has a long and ugly backstory.

impeach earl warren

The cars were different, but the anger was the same…

As I found over and over again in the research for my book about twentieth-century conservatism, SCOTUS debates have never been polite or gentlemanly. Just ask Earl Warren, a perennial punching bag for the Birchers and their conservative friends.

Chief Justice Warren might have been the most prominent, but he was far from the only lightning-rod of controversy in recent SCOTUS history. Fewer people these days might remember the trials and tribulations of Justice William O. “Wild Bill” Douglas.

Were the attacks on Justice Douglas temperate? Polite? Bi-partisan?

Consider the following: On the floor of the US House of Representatives, for example, future President Gerald Ford initiated impeachment proceedings against Justice Douglas on April 15, 1970. According to the New York Times, Representative Ford accused Douglas of writing “hard-core pornography,” of pushing “hippie-yippie style revolution.” Douglas, Ford charged, was connected to organized crime and deserved to be kicked to the curb due to Douglas’s connections “with some of the most unsavory and notorious elements in American society.”

Douglas impeachment

Porn, gangsters, and hippie-yippies…

Not polite. Not bi-partisan. And, like more famous elements of the Nixon era, not at all disinterested. The New York Times speculated that the real reason for the impeachment proceedings against Justice Douglas was payback for Congressional rejections of other Nixon judicial appointees.

So I, for one, will continue to be bummed by the rancor and contumely expressed during the Kavanaugh hearings. I continue to feel dismayed by Mitch McConnell’s naked power-grab in the non-confirmation of Merrick Garland. I am outraged by the thought of a stolen SCOTUS majority and I will work to elect anti-Trump, anti-Kavanaugh representatives and senators.

But I can’t pretend that this sort of ugliness has not been part and parcel of SCOTUS politics for a long time.

Leave a comment


  1. Thanks – good info to know.

  2. “I continue to feel dismayed by Mitch McConnell’s naked power-grab in the non-confirmation of Merrick Garland.”

    So you mean to say that if Trump had been president instead of Obama, and it was Ginsberg who died instead of Scalia, and the nominee was Gorsuch instead of Garland, and the Democrats held the Senate instead of the Republicans, that the Democrats would have confirmed Gorsuch, flipping the ideological balance of the court, even though they didn’t have to, just as a matter of principle?

    Yeah . . . RIGHT!!!!!!!!


  3. My take is a bit different: In an August 2016 speech in Kentucky, Senator McConnell said, “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.'” The nomination languished for 293 days. And your hard-to-follow scenario flies in the face of history: “In February 1988, during an election year, the Democratic-controlled Senate confirmed Anthony Kennedy, who was the Republican President Ronald Reagan’s nominee for the Supreme Court, though Kennedy had been nominated in November 1987 to replace Lewis Powell who was nominated by Richard Nixon, and the vacancy had occurred in June 1987. On October 9, 1990, the Democratic-controlled Senate (55–45) confirmed President George H. W. Bush’s appointee, David Souter, 90–9. On October 15, 1991, that same Senate confirmed Clarence Thomas, 52–48.”

  4. Agellius

     /  October 10, 2018

    [Sorry if this is posting twice but it didn’t appear for me after posting it the first time.]

    I will concede that it’s not a tradition, but that’s not the point I was making. My argument is that the Democrats would have done the same thing in the same situation – just as untraditionally — with the roles reversed.

    Douglas countered by pointing out that Kennedy was confirmed during an election year. But the seat became vacant in the middle of the prior year (June 1987). Whereas Scalia’s seat became vacant *during* an election year, with the primaries already underway. In the Kennedy scenario the filling of Lewis Powell’s Supreme Court seat was being *concluded* as the primaries were getting underway; whereas in the Scalia scenario the process was just *beginning* at the start of the primary season.

    If the Democratic Senate had refused to confirm Kennedy (Reagan’s third nominee for the seat) before the January 1989 inauguration, it would have been a delay of 569 days, or 19 months. Whereas in the case of Scalia’s seat, the date of Garland’s nomination to the date of Trump’s inauguration was 310 days, or about 10 months.

    It took four months for the Senate to reject Reagan’s first nominee for the Powell seat, Robert Bork, and another four months after that for Kennedy to be confirmed. If it had taken four months to confirm Garland, we would have been in a situation of the opposing party confirming a court-flipping new justice just four months before Election Day. Is there *any* precedent for that?

    I stand by my contention that there’s no way in hell the Democrats would have confirmed Gorsuch in that scenario. If you really believe they would have, out of pure principle, all I can say is don’t ever lose that childlike innocence, it’s priceless! ; )

  5. Agellius

     /  October 10, 2018

    Admittedly, if the roles were reversed and the Democrats did refused to confirm Gorsuch in such a scenario, the Republicans would be just as outraged as you guys are.

  6. I have equal disgust for the scum on both sides of the aisle. bye

  7. Marc Pacchioli

     /  October 11, 2018

    Garland and Kavanaugh have a history of voting the same on about 93% of decisions I think. Big Diff eh?


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: