Hatch & Marshall in Historical Perspective

The Fortas confirmation hearings (1968) provided a turning point in how the Senate considered Supreme Court nominees. Fortas personally testified before the Senate Judiciary Committee; interest groups rallied against the nominee (focusing on his decisions on obscenity cases); and a combination of raw partisanship and hostility to his judicial philosophy led a good chunk of the Senate to outright oppose Fortas’ elevation to chief justice. The nomination ultimately never came to a vote, doomed by a filibuster.

Since 1968, a handful of nominees (Stevens, O’Connor, Ginsburg, Scalia) have sailed through the confirmation process essentially unscathed. But the Fortas Rules have been the more common.

Thurgood Marshall (1967) was the last Supreme Court nominee to experience the pre-Fortas system—but, as TPM points out, Judiciary Committee Republicans used today’s Kagan hearings to relitigate Marshall’s confirmation.

The most striking aspect of the anti-Marshall sentiment, however, came from the comparatively moderate Orrin Hatch. Asked if he would have voted to have confirmed Marshall had he served in the 1967 Senate, Hatch replied, “It’s hard to say.”

For the record: eleven senators—almost all segregationists—voted against Marshall’s confirmation. The list includes Robert Byrd (D-West Virginia), James Eastland (D-Mississippi), Allen Ellender (D-Louisiana), Sam Ervin (D-North Carolina), Lister Hill (D-Alabama), Spessard Holland (D-Florida), Fritz Hollings (D-South Carolina), Russell Long (D-Louisiana), John Sparkman (D-Alabama), Herman Talmadge (D-Georgia), and Strom Thurmond (R-South Carolina). It surprises me that Hatch would want to position himself with this cohort.