The Least Dangerous Branch? · Episode 10 of 13 · 44 min
How the Supreme Court's Seats Were Won
Between 1968 and 2020, filling Supreme Court seats became open political combat: a filibustered nominee, a rejected one, a blockaded seat, and two rule changes used by both parties. The episode catalogs the confirmation wars and the widely cited appointment gap between Republican and Democratic presidents, following the facts rather than a villain.
Who's who
- Abe FortasJohnson's Chief Justice nominee, filibustered and withdrawn in 1968
- Richard Nixon+15 more episodesSeated four justices between 1969 and 1971
- Robert Bork+1 more episodeReagan nominee rejected by the Senate in 1987
- Douglas H. GinsburgReagan choice withdrawn over past marijuana use
- Clarence Thomas+1 more episodeConfirmed 52-48 in 1991 after the Anita Hill hearings
- Merrick GarlandObama's 2016 nominee who never received a hearing
- Harry ReidSenate leader who triggered the 2013 filibuster change
- Mitch McConnellSenate leader who held the Scalia seat open
Timeline
- October 1, 1968Cloture fails 45-43 on Fortas; nomination withdrawn.
- October 23, 1987Senate rejects Bork, 42-58.
- November 21, 2013Democrats end the filibuster for most nominations, excepting the Supreme Court.
- February 13, 2016Scalia dies; McConnell says the seat should stay vacant until after the election.
- April 6, 2017Republicans extend the nuclear option to Supreme Court nominees.
- October 26, 2020Amy Coney Barrett is confirmed 52-48, producing a 6-3 majority.
Still debated
Each side names a different starting point for the escalation, from Fortas to Bork to Garland. Scholars also dispute whether the appointment gap reflects manipulation, luck or the ordinary reward of winning elections.
← PreviousThe Warren Court: Judicial Activism From the Other DirectionNext →Bush v. Gore to Dobbs: Is the Supreme Court Just Politics?
Connected episodes in other series
How White Evangelicals Moved From Democrat to RepublicanA Wall of Separation · Episode 7Also features Richard Nixon
How Copper Sparked the Chilean CoupBackyard Empire: The U.S. in Latin America · Episode 4Also features Richard Nixon
Greeting: The 1969 Lottery and Two Questions About the DraftGreeting: America and the Draft · Episode 1Also features Richard Nixon
The Motherhood Penalty: The Childcare Bill Nixon VetoedHaving It All · Episode 5Also features Richard Nixon