1 00:00:02,000 --> 00:00:07,000 Speaker 1: Welcome to brain Stuff from How Stuff Works, Hey, brain Stuff, 2 00:00:07,040 --> 00:00:10,240 Speaker 1: Lauren voglebam here. When a U. S President nominates someone 3 00:00:10,240 --> 00:00:12,559 Speaker 1: to take over a seat on the Supreme Court, things 4 00:00:12,600 --> 00:00:15,360 Speaker 1: don't always turn as contentious as they do these days. 5 00:00:15,960 --> 00:00:19,240 Speaker 1: Since the Supreme Court was established in sevent nine, presidents 6 00:00:19,239 --> 00:00:21,119 Speaker 1: have sent a hundred and sixty three names to the 7 00:00:21,120 --> 00:00:24,119 Speaker 1: Senate for approval. The Senate has so far approved a 8 00:00:24,160 --> 00:00:26,560 Speaker 1: hundred and twenty six of them. That's about seventy seven, 9 00:00:27,200 --> 00:00:31,120 Speaker 1: although seven have also turned down the appointment. Some of 10 00:00:31,160 --> 00:00:33,480 Speaker 1: the nominees have faced a tougher road than others. Of course, 11 00:00:34,000 --> 00:00:36,960 Speaker 1: roughly twenty three don't make it. Some of those were 12 00:00:37,000 --> 00:00:40,360 Speaker 1: outright rejected. Some nominees take their names out of consideration. 13 00:00:40,960 --> 00:00:42,800 Speaker 1: The Senate didn't even bother to vote on ten of 14 00:00:42,800 --> 00:00:46,199 Speaker 1: the president's recommendations, most notably that of Merrick Garland, who 15 00:00:46,240 --> 00:00:49,120 Speaker 1: was nominated by President Barack Obama in twenty six toward 16 00:00:49,159 --> 00:00:52,560 Speaker 1: the end of his second term. Often, though the chosen 17 00:00:52,560 --> 00:00:56,320 Speaker 1: ones breathe through the process. Current Associate Justice Ruth Bader 18 00:00:56,320 --> 00:01:00,280 Speaker 1: Ginsburg want a Senate vote of ninety six to three three. 19 00:01:01,000 --> 00:01:03,760 Speaker 1: In the nineteen eighties, President Ronald Reagan nominated three judges 20 00:01:03,800 --> 00:01:07,080 Speaker 1: who were voted onto the bench unanimously, Sandra Day O'Connor, 21 00:01:07,120 --> 00:01:09,759 Speaker 1: the first woman to serve on the court, anton In Scalia, 22 00:01:09,880 --> 00:01:13,920 Speaker 1: and Anthony Kennedy. We spoke with John Michaels, a professor 23 00:01:13,959 --> 00:01:16,440 Speaker 1: at the u c l A School of Law. He said, 24 00:01:16,760 --> 00:01:19,320 Speaker 1: it's supposed to be a kind of collaboration. There's an 25 00:01:19,360 --> 00:01:22,840 Speaker 1: understanding that there's deference paid to the president's nominee, so 26 00:01:22,920 --> 00:01:25,280 Speaker 1: there has to be something problematic about that nominee to 27 00:01:25,280 --> 00:01:30,480 Speaker 1: not go forward, but welcome to Now these days, in 28 00:01:30,520 --> 00:01:34,520 Speaker 1: a politically fractured nation, things aren't nearly as easy. Something 29 00:01:34,560 --> 00:01:38,080 Speaker 1: problematic is always on hand. Collaboration is a dirty word. 30 00:01:39,200 --> 00:01:42,560 Speaker 1: A Republican led Senate, at odds with President Obama sixteen 31 00:01:42,840 --> 00:01:46,080 Speaker 1: sat on Garland's domination, refusing to even hold a hearing 32 00:01:46,720 --> 00:01:50,080 Speaker 1: when President Donald Trump took office in January seventeen and 33 00:01:50,160 --> 00:01:53,240 Speaker 1: nominated Neil Gorstch to the bench instead. The Gorsetch passed 34 00:01:53,240 --> 00:01:56,279 Speaker 1: the Republican led Senate, but just barely, with a fifty 35 00:01:56,320 --> 00:01:59,560 Speaker 1: four to forty five vote, and only after Republicans changed 36 00:01:59,600 --> 00:02:03,320 Speaker 1: Senate rules to prevent a Democratic filibuster. Even getting to 37 00:02:03,320 --> 00:02:06,040 Speaker 1: the Senate vote is sometimes tricky, as U. S. Circuit 38 00:02:06,040 --> 00:02:08,480 Speaker 1: Court Judge Brett Covna found out in the late summer 39 00:02:08,520 --> 00:02:12,040 Speaker 1: of eighteen, Kavanaugh was nominated by Trump to take over 40 00:02:12,040 --> 00:02:15,360 Speaker 1: the seat of retiring Supreme Court Associate Justice Anthony Kennedy, 41 00:02:15,600 --> 00:02:20,040 Speaker 1: and things turned ugly quickly. Democrats, stinging from the Garland 42 00:02:20,080 --> 00:02:22,920 Speaker 1: snub and the way the Senate pushed through Gorset, and 43 00:02:23,000 --> 00:02:25,920 Speaker 1: fearing a conservative turn that could impact Supreme Court decisions 44 00:02:25,919 --> 00:02:30,560 Speaker 1: for decades, hounded Covenaugh's nomination, and when several women days 45 00:02:30,600 --> 00:02:34,120 Speaker 1: before the Judiciary Committee vote accused Covena of sexual assault, 46 00:02:34,320 --> 00:02:37,600 Speaker 1: Democrats and a key Republican or too called to reopen 47 00:02:37,639 --> 00:02:42,280 Speaker 1: the FBI background investigation into the nominees past and angry tiry, 48 00:02:42,320 --> 00:02:44,600 Speaker 1: Covena was forced to defend himself in front of a 49 00:02:44,720 --> 00:02:48,240 Speaker 1: very public hearing of the committee. But Kavanaugh is not 50 00:02:48,320 --> 00:02:51,800 Speaker 1: the first to be put through the nomination ringer. The 51 00:02:51,880 --> 00:02:54,200 Speaker 1: very first nominee to the Supreme Court to be rejected 52 00:02:54,240 --> 00:02:57,600 Speaker 1: was John Rutledge in s Rutledge had been one of 53 00:02:57,639 --> 00:03:01,000 Speaker 1: the original Associate Justices, but resigned before hearing a case 54 00:03:01,040 --> 00:03:04,480 Speaker 1: to return to South Carolina. When George Washington tapped him 55 00:03:04,480 --> 00:03:07,440 Speaker 1: again to serve as Chief Justice during a Senate recess, 56 00:03:07,480 --> 00:03:11,600 Speaker 1: he returned. During his brief tenure, Rutledge criticized the administration, 57 00:03:11,840 --> 00:03:14,600 Speaker 1: and rumors of mental illness and alcohol abuse spurred on 58 00:03:14,639 --> 00:03:17,840 Speaker 1: by the opposing party press, were rampant. When the Senate 59 00:03:17,840 --> 00:03:20,120 Speaker 1: convened and had a chance to vote, it rejected him 60 00:03:20,120 --> 00:03:23,720 Speaker 1: fourteen to ten. He's the only recess appointed judge that 61 00:03:23,840 --> 00:03:28,480 Speaker 1: didn't later earn a Senate nod. And here are and 62 00:03:28,720 --> 00:03:32,520 Speaker 1: skipping ahead, here are the most recent. Harriet Myers, the 63 00:03:32,639 --> 00:03:35,600 Speaker 1: former Council to President George W. Bush, was nominated to 64 00:03:35,600 --> 00:03:39,000 Speaker 1: replace retiring Associate Justice Sandra Day O'Connor in October of 65 00:03:39,000 --> 00:03:41,760 Speaker 1: two thousand five. It was a surprising choice in that 66 00:03:41,840 --> 00:03:44,320 Speaker 1: Myers had never been a judge. She also had been 67 00:03:44,360 --> 00:03:46,920 Speaker 1: Bush's personal lawyer for many years, going back to his 68 00:03:46,960 --> 00:03:49,760 Speaker 1: time in Texas, which raised flags that the appointment might 69 00:03:49,800 --> 00:03:54,200 Speaker 1: be too political. Meyers struggled with constitutional questions posed to 70 00:03:54,240 --> 00:03:57,200 Speaker 1: her by the Senate Judiciary Committee too. In the end, 71 00:03:57,280 --> 00:03:59,440 Speaker 1: with strong signs that she would not be approved, she 72 00:03:59,520 --> 00:04:04,680 Speaker 1: withdrew from consideration. Clarence Thomas, meanwhile, was a George H. W. 73 00:04:04,840 --> 00:04:09,000 Speaker 1: Bush nominee, A staunchly conservative Thomas went through tense hearings 74 00:04:09,040 --> 00:04:12,840 Speaker 1: in front of the Judiciary Committee in and then Anita Hill, 75 00:04:13,080 --> 00:04:15,600 Speaker 1: a former employee of Thomas's, showed up with charges that 76 00:04:15,640 --> 00:04:19,640 Speaker 1: Thomas had sexually assaulted her. Michael's spoke about those hearings. 77 00:04:20,200 --> 00:04:22,279 Speaker 1: He said, if you go back and watch some of 78 00:04:22,279 --> 00:04:24,839 Speaker 1: the ways that senators were questioning Unita Hill, it's not 79 00:04:24,920 --> 00:04:27,080 Speaker 1: even whether we believe them or not. We weren't really 80 00:04:27,200 --> 00:04:31,400 Speaker 1: understanding what the problems were. Thomas would end up passing 81 00:04:31,400 --> 00:04:36,000 Speaker 1: fifty eight. He still serves on the Court. Robert Bourke 82 00:04:36,080 --> 00:04:38,680 Speaker 1: is the most recent nominee rejected by the full Senate. 83 00:04:38,920 --> 00:04:42,599 Speaker 1: Reagan put his name in in Bourke was voted down 84 00:04:42,600 --> 00:04:45,080 Speaker 1: by the Judiciary Committee, but refused to withdraw his name 85 00:04:45,120 --> 00:04:48,640 Speaker 1: from consideration, making the Senate vote on him. The conservative 86 00:04:48,680 --> 00:04:51,560 Speaker 1: Bork scared many with his views on privacy, civil rights, 87 00:04:51,600 --> 00:04:54,120 Speaker 1: women's rights, and his belief that the Constitution should be 88 00:04:54,120 --> 00:04:56,960 Speaker 1: interpreted through the eyes of those who framed it. His 89 00:04:57,040 --> 00:05:00,679 Speaker 1: contentious hearings led to the verb borking from Ariam Webster 90 00:05:01,120 --> 00:05:03,960 Speaker 1: to attack or defeat a nominee or candidate for public 91 00:05:04,000 --> 00:05:07,880 Speaker 1: office unfairly through an organized campaign of harsh public criticism. 92 00:05:07,960 --> 00:05:12,640 Speaker 1: Or vilification, and there have been others. President Richard Nixon 93 00:05:12,680 --> 00:05:15,960 Speaker 1: had two Supreme Court nominees rejected, Clement Haynesworth, Jr. In 94 00:05:16,080 --> 00:05:19,760 Speaker 1: nineteen seventy and g. Herald Carswell in nineteen sixty nine. 95 00:05:20,279 --> 00:05:22,080 Speaker 1: Cars Well was the first at the time to be 96 00:05:22,200 --> 00:05:25,279 Speaker 1: voted down since nineteen thirty. Both were shot down for 97 00:05:25,320 --> 00:05:29,640 Speaker 1: their past views on civil rights and racial equality. We'd 98 00:05:29,680 --> 00:05:31,880 Speaker 1: like to think that the Supreme Court, being the last 99 00:05:31,920 --> 00:05:33,920 Speaker 1: stop on the road to justice, would be able to 100 00:05:33,960 --> 00:05:37,000 Speaker 1: put aside partisanship in politics to make well reasoned judgments 101 00:05:37,000 --> 00:05:39,719 Speaker 1: on what is best for the country. But justices have 102 00:05:39,800 --> 00:05:42,200 Speaker 1: views too, and they are appointed by presidents who have 103 00:05:42,320 --> 00:05:45,000 Speaker 1: their own views and voted on by representatives who have 104 00:05:45,160 --> 00:05:48,520 Speaker 1: yet their own. It's not surprising, then, that these nominees 105 00:05:48,520 --> 00:05:51,440 Speaker 1: are put through a ringer by opposing parties. As much 106 00:05:51,480 --> 00:05:53,440 Speaker 1: as we may hate to see a nominee's life turned 107 00:05:53,520 --> 00:05:56,080 Speaker 1: upside down by the process, it's not just their lives 108 00:05:56,080 --> 00:05:59,320 Speaker 1: on the line, it's the fate of the country. Michael's 109 00:05:59,320 --> 00:06:01,800 Speaker 1: explained it this way. It is a little weird to 110 00:06:01,839 --> 00:06:04,320 Speaker 1: have a system so dependent on a very partisan choice 111 00:06:04,320 --> 00:06:07,440 Speaker 1: by president when the choice just depends on when people die. 112 00:06:07,880 --> 00:06:10,800 Speaker 1: You can just get lucky or unlucky. It would be 113 00:06:10,880 --> 00:06:13,560 Speaker 1: nice in a perfect world if presidents and senators did 114 00:06:13,560 --> 00:06:15,880 Speaker 1: not play power politics with the courts, but that would 115 00:06:15,880 --> 00:06:18,840 Speaker 1: be naive, especially since the court plays a central role 116 00:06:18,880 --> 00:06:27,600 Speaker 1: in American political, social, and economic life. Today's episode was 117 00:06:27,640 --> 00:06:30,440 Speaker 1: written by John Donovan and produced by Tyler. Playing. For 118 00:06:30,520 --> 00:06:33,400 Speaker 1: more illness and lots of other vigorously approved topics, visit 119 00:06:33,440 --> 00:06:46,800 Speaker 1: our home planet, how stuff works dot com.