Republican Opposition to Sotomayor Marks Largest Supreme Court Confirmation Vote Dissent in GOP History

Last week’s vote in the U.S. Senate confirming Sonia Sotomayor as an Associate Justice of the Supreme Court was noteworthy foremost, of course, for Sotomayor being the first Hispanic and third woman to serve on the Court.

But the Senate vote was also significant for the Republicans and what emerged as a historic vote for the GOP in its own right – the largest number of Republicans to ever vote against a Democratic president’s nominee to the Court.

Since the Republican Party’s formation in 1854, the Senate has voted on 30 Democratic presidential nominees to the Supreme Court. Twenty-seven of these nominees, including Sotomayor, have been confirmed.

· Fourteen nominees were confirmed by voice vote: Abe Fortas (1965), Arthur Goldberg (1962), Byron White (1962), Frederick Vinson (1946), Harold Burton (1945), Wiley Rutledge (1943), Robert Jackson (1941), James Byrnes (1941), Frank Murphy (1940), Felix Frankfurter (1939), Stanley Reed (1939), John Hessin Clarke (1916), Rufas Peckham (1895), and Edward White (1894).

· An additional thirteen nominees were confirmed on a formal roll call vote: Sotomayor, Stephen Breyer (1994), Ruth Bader Ginsburg (1993), Thurgood Marshall (1967), Sherman Minton (1949), Tom Campbell Clark (1949), William Douglas (1939), Hugo Black (1937), Louis Brandeis (1916), James Clark McReynolds (1914), Melville Fuller (1888), Lucius Lamar (1888), and Nathan Clifford (1858).

· Another three nominees were ultimately rejected by the Senate: Wheeler Peckham (1894), William Hornblower (1894), and Jeremiah Black (1861).

Of the 26 such nominees by Democratic presidents who were confirmed prior to Sotomayor since 1858, just 166 ‘nay’ votes were cast against them collectively – the majority of which, but far from all, were registered by Republicans. This averages to just 6.4 ‘nay’ votes per confirmed nominee and 13.8 ‘nay’ votes for those 12 justices confirmed via roll call votes before Sotomayor. Sotomayor received 31 votes against her nomination last week – all by Republicans.

The Sotomayor vote is significant in that it marks one of the most unified Republican fronts against a nominee by a Democratic President in the 151 years since the Party’s first such vote in 1858 when President James Buchanan nominated Nathan Clifford.

Prior to Sotomayor, the largest number of total votes cast against a Democratic presidential Supreme Court nominee since the turn of the 20th Century was 22 – when Woodrow Wilson put his economic adviser Louis Brandeis up for confirmation. But of the 40 Republicans in the Senate at that time, just 21 voted against Brandeis, or 52.5 percent of the caucus (one Democrat joined in opposition).

Another controversial Democratic presidential nominee in the 20th Century was Hugo Black, whose 1937 nomination by FDR made it through the Democratic-dominated Senate, but only just as rumors of Black’s association with the KKK began to surface in the media. Ultimately, Black was confirmed on a 63 to 16 vote, with 10 of the GOP caucus’ 16 members voting against the nominee (62.5 percent in opposition).

When Thurgood Marshall, the first African-American Supreme Court nominee, was put up for confirmation by LBJ in 1967, only one Republican Senator (Strom Thurmond of South Carolina) voted ‘nay’ among the 36-member GOP caucus. The other 10 votes against Marshall all came from Southern Democrats.

Republican opposition to the 21 Democratic presidential Supreme Court nominees who received a confirmation vote in the 20th Century therefore pales in comparison to the 77.5 percent of Republicans who voted against Sotomayor last week.

In fact, there were more Republican caucus votes cast against Sotomayor than Republican votes cast against the last seven Democratic presidential nominees combined: Stephen Breyer, Ruth Bader Ginsberg, Thurgood Marshall, Abe Fortas, Arthur Goldberg, Byron White, and Sherman Minton.

Even going back to the mid-1850s, after the formation of the Republican Party, only one Democratic presidential Supreme Court nominee has received more ‘nay’ votes than Sotomayor – Grover Cleveland’s rejected nominee Wheeler Peckham in February of 1894 (who was rejected on a 32 to 41 vote).

However, opposition to Peckham’s confirmation, as well as President Cleveland’s other rejected nominee, William Hornblower (who received 30 ‘nay’ votes), was led not by Republicans, but by fellow New York Democratic Senator David B. Hill, along with pro-Silverite Democratic Senators (Hornblower himself was actually a Democrat).

The other Democratic presidential nominee that was defeated in the GOP era was Clifford Black, a Buchanan nominee from 1861. Criticism of Black, however, was not simply led by anti-Buchanan Republicans, but also by prominent Democratic Senator Stephan A. Douglas.

Republican opposition to Sotomayor, at more than three-quarters of its caucus, therefore stands as one of the most unified fronts against a Democratic president’s nominee in Republican Party history, and the most unified dissent since the turn of the 20th Century.

The vote is also noteworthy, as Smart Politics reported last week, in that the GOP Senators voting against Sotomayor represented states with the largest percentages of Hispanics in the Republican caucus, and were involved in the most competitive races during their last election cycle.

With its Sotomayor vote, the Republican Party has now emulated the recent voting practices of the Democratic Party, who has been much more inclined to vote against Republican presidential Supreme Court nominees in recent years in an era of increasingly bitter partisanship in Washington, D.C.

· In 2006, 91 percent of Democrats (40 of 44) voted against George W. Bush nominee Samuel Alito.
· In 2005, 50 percent of Democrats (22 of 44) voted against John Roberts’ confirmation.
· In 1991, 81 percent of Democrats (46 of 57) voted against George H.W. Bush’s nominee, Clarence Thomas.
· In 1987, 96 percent of Democratic Senators (52 of 54) voted against Ronald Reagan’s rejected nominee, Robert Bork.

Senate Voting Record Towards Democratic Presidential Supreme Court Nominees, 1858-2009

Nominee	President	Date	Vote	GOP
Sonia Sotomayor	Obama	Aug 2009	68-31	40
Stephen Breyer	Clinton	Jul 1994	87-9	44
Ruth Bader Ginsburg	Clinton	Aug 1993	96-3	43
Thurgood Marshall	LBJ	Aug 1967	69-11	36
Abe Fortas	LBJ	Aug 1965	Voice	32
Arthur Goldberg	Kennedy	Sep 1962	Voice	36
Byron White	Kennedy	Apr 1962	Voice	36
Sherman Minton	Truman	Oct 1949	48-16	42
Tom Campbell Clark	Truman	Aug 1949	73-8	42
Frederick Vinson	Truman	Jun 1946	Voice	38
Harold Burton	Truman	Sep 1945	Voice	38
Wiley Rutledge	FDR	Feb 1943	Voice	38
Robert Jackson	FDR	Jul 1941	Voice	28
James Byrnes	FDR	Jun 1941	Voice	28
Frank Murphy	FDR	Jan 1940	Voice	23
William Douglas	FDR	Apr 1939	62-4	23
Felix Frankfurter	FDR	Jan 1939	Voice	23
Stanley Reed	FDR	Jan 1938	Voice	16
Hugo Black	FDR	Aug 1937	63-16	16
John Hessin Clarke	Wilson	Jul 1916	Voice	40
Louis Brandeis	Wilson	Jun 1916	47-22	40
James McReynolds	Wilson	Aug 1914	44-6	44
Rufas Peckham	Cleveland	Dec 1895	Voice	44
Edward White	Cleveland	Feb 1894	Voice	40
Wheeler Peckham*	Cleveland	Feb 1894	32-41	40
William Hornblower*	Cleveland	Jan 1894	24-30	40
Melville Fuller	Cleveland	Jul 1888	41-20	39
Lucius Lamar	Cleveland	Jan 1888	32-28	39
Jeremiah Black*	Buchanan	Feb 1861	25-26	26
Nathan Clifford	Buchanan	Jan 1858	26-23	20

* Nominee rejected by the U.S. Senate. Far right column denotes the number of Republican Senators in the U.S. Senate at the time of the confirmation. Data compiled by Smart Politics.

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