How many votes did the Justices get?


CNN, uncomprehending: Commentary on the Jackson confirmation hearings was just pitifully bad. 

It was largely composed of embellishment along with the reading of script. It was Storyline all the way down. 

For ourselves, we were disappointed in Jackson's widely lauded performance. We felt she kept refusing to answer some perfectly straightforward questions—questions which deserved a simple reply. 

That said, the absurdity of the tribal punditry was in no way Jackson's fault. Consider the huffing and puffing on CNN after Jackson had been confirmed.

The huffing and puffing came from the perpetually offended Laura Coates. It would be hard to offer a less informative bit of punditry than the punditry offered here:

COATES (4/7/22): Why on earth, how can it be that we have gone from a time when the very first woman to be a Supreme Court Justice—talking about Sandra Day O'Connor—was, I think, 99-0. 

How it can be that somebody who was as qualified as Judge Ketanji Brown Jackson is having to scrape by, and hope for the kindness of Republican strangers, to tally onto the already unanimous Democratic vote?

That tells you a lot about where we are in this country. And I hope that members of Congress, when they're wondering why the American people sometimes question whether the Supreme Court is a political extension of the legislative branch, I hope they look to themselves and can identify and explain to their constituents why this particular nominee would not have gotten a resounding yes.

But I hope their electorate will understand that, at the end of the day, without it, she still will be Justice Ketanji Brown Jackson. And I'm proud. Congratulations, Madam Justice!

Forget the unabashed cheerleading, a practice which now typifies cable punditry all across the dial. Focus instead on the silly question posed by the irate legal analyst as that passage began.

For starters, yes! Way back in September 1981, during President Reagan's first year, Justice O'Connor was indeed confirmed by a 99-0 vote. The leading authority on the matter offers a bit of background:

O'Connor's confirmation hearing before the Senate Judiciary Committee began on September 9, 1981. It was the first televised confirmation hearing for a Supreme Court justice. The confirmation hearing lasted three days and largely focused on the issue of abortion. When asked, O'Connor refused to telegraph her views on abortion, and she was careful not to leave the impression that she supported abortion rights. The Judiciary Committee approved O'Connor with seventeen votes in favor and one vote of present.

On September 21, O'Connor was confirmed by the U.S. Senate with a vote of 99–0. Only Senator Max Baucus of Montana was absent from the vote, and he sent O'Connor a copy of A River Runs Through It by way of apology.

In those days, the Judiciary Committee somehow managed to get by with only 18 senators posturing and bloviating during televised hearings instead of today's 22. 

At any rate, that "one vote of present" in committee came from Jeremiah Denton (R-Alabama). According to the New York Times, Denton said that he had voted that way "because she had refused to criticize the 1973 Supreme Court decision that legalized abortion."

To a large extent, that battle about Roe v. Wade was the start of it all. One week ago today, CNN's Coates was shocked, shocked by the idea that someone as qualified as Jackson had only received three Republican votes.

Viewers might have been misled into thinking that there was something unusual or surprising about that. In truth, this pattern has obtained for some time. Below, you see the number of votes the last seven nominees have received from senators of the opposition party:

Votes from opposition party, Senate confirmations
Justice Alito (2006): 4
Justice Sotomayor (2009): 9
Justice Kagan (2010): 5
Justice Gorsuch (2017): 3
Justice Kavanaugh (2018): 1
Justice Barrett (2020): 0
Justice Jackson (2022): 3

When he was confirmed in 2005, Justice Roberts received 22 Democratic votes. That made him the last of the Mohicans as far as getting oppositions votes is concerned.

(For all such data, start here.)

Even there, those Democratic votes partly represented a dying tradition, in which Democrats were still able to win Senate seats in states which were solid red. 

Included in those 22 Democratic votes were three votes from the Dakotas, along with votes from such states as Arkansas (2), Louisiana (2), West Virginia (2), Nebraska and Montana. It's very hard, though not yet impossible, for Democrats to win Senate seats from those states today.

To appearances, Coates couldn't imagine why Judge Jackson got only three Republican votes. In fact, as it has become increasingly clear that the Supreme Court now functions as a political body, it has become harder and harder for nominees to attain opposition support.

You'd think that everyone would be familiar with that fact, but Coates was huffing and puffing this day, as she persistently does. In the prcess, cable viewers may have been misled about the way our rapidly failing systems actually work.

One last point:

During her uncomprehending statement, Coates was advancing the tribal script according to which no nominee has ever been more qualified than Judge Jackson—in which she may have been the most qualified nominee ever. This widely voiced claim allows our pitiful blue tribe to marinate even further in our imagined oppression.


Justice Thurgood Marshall was nominated and confirmed in 1967. Was Judge Jackson really more qualified than he was? Was she more qualified than Justice Earl Warren, who was governor of California when he was nominated and confirmed in 1953?

For that matter, was she more qualified than Justice Sotomayor? If so, in what way? Only a tribe caught in a type of moral panic would want to invest itself in such pointless invidious claims.

On CNN, the perpetually irate analyst Coates was cheerleading hard. She was also huffing and puffing in the tribally mandated ways.

For some reason, Coates was caught by surprise—seemed to be uncomprehending—when Jackson received only three Republican votes. In such ways, our "cable news" discourse slides towards the sea as embellishment and Storyline continue to conquer the land.

Interesting factlets: Despite his presence in a red state, Senator Graham voted to confirm Justice Sotomayor. One year later, he voted to confirm Justice Kagan. 

Those days seem to be over for Senator Graham. Compare, contrast and explain.


  1. Somerby says he thought Jackson was evasive on some questions. Was he perhaps referring to her statement that she was not a biologist, in response to being asked to define man and woman? Does Somerby think that is a straightforward question? If so, he is majorly ignorant on the topic of gender.

    Here is Sandra Day O-Connor's performance:

    "When asked, O'Connor refused to telegraph her views on abortion, and she was careful not to leave the impression that she supported abortion rights. "

    Would he be similarly critical of O'Connor's refusal to answer certain questions? Or would he give her a pass, and if so, on what basis? Somerby has been pretending that he doesn't know how nomination hearings work these days. It is a game of gotcha and the smart nominee stays out of the partisan traps laid by opponents to her nomination. But that is not OK in Somerby's book, which suggests he has a sympathy for those laying the traps, not the wary Jackson who managed to avoid them.

  2. Somerby disingenuously ignores that accusations against Kavanaugh and the fact that Amy Coney Barrett took the seat that should have gone to Merrick Garland had McConnell not denied the change to consider his nomination during Obama's term. That 0 vote for Barrett was an objection to the wrongdoing of the Republicans who refused to consider a sitting president's court nomination at all. It had nothing to do with a rejection of bipartisanship by Democrats. It was a reaction to what the Republicans did. Gorsuch received bipartisan support from Democrats. Somerby needs to consider why the tradition of bipartisanship has died.

  3. You, dear Bob, are the only person we know who would hold -- absolutely sincerely and earnestly, no doubt! -- such deeep thoughts about a clown show. May we reluctantly suggest that seeing a psychiatrist might be a good idea?

    "That said, the absurdity of the tribal punditry was in no way Jackson's fault."

    Meh. That lady is one of your absurd tribe's VIPs. How could it not be, in part, her fault? Think about it, dear Bob.

    1. Jackson is not a liberal VIP. She was a District Court Judge who was promoted to the Supreme Court. Liberals don't own the court any more than conservatives do. We don't even know how Jackson has voted in any election, much less have any statements from her about liberal issues. We have her record as a judge and lawyer, and that is as it should be.

  4. "In fact, as it has become increasingly clear that the Supreme Court now functions as a political body, it has become harder and harder for nominees to attain opposition support."

    This is incorrect. It is still Congress which functions as a political body. Some justices on the Supreme Court have been political (notably Clarence Thomas and Kavanaugh who are corrupted by partisan politics). The other conservative justices (Souter, Gorsuch, Barrett) have conservative political opinions but function as judges when considering cases, not partyline followers. Roberts has functioned as a conservative-leaning chief justice with some integrity even if he doesn't agree with left-leaning justices. The lack of integrity of Thomas and Kavanaugh is a slap in the face of what a justice should be, but that is unsurprising given their flaws as nominees.

    Somerby perhaps meant to claim that the process of nomination by congress has become more political, but it isn't yet the fact that the highest court is under Republican control. It has a majority of justices with right-leaning judicial perspectives and that is a very different thing than the Republican party handing the court marching orders -- as Trump clearly thought he would be able to do.

    This is exceptionally careless language, even for Somerby.

    1. This is relevant:

  5. "Justice Thurgood Marshall was nominated and confirmed in 1967. Was Judge Jackson really more qualified than he was? Was she more qualified than Justice Earl Warren, who was governor of California when he was nominated and confirmed in 1953?"

    Yes, she was more qualified as a judge than either of these two men. Her path to the Supreme Court was different than theirs.

    Thurgood Marshall was an attorney and civil rights activist working for the NAACP. He argued Brown v Board of Education before the Supreme Court. Jackson was not a civil rights activist and had no connection with any civil rights organization. Earl Warren was a politician, District Attorney and Governor before being appointed to the Supreme Court. Jackson was not a politician and served as a public defender not a prosecutor before becoming a judge. Her perspective on the law is different than either man, but it is not possible to claim that her accomplishments were less important than theirs. Her lack of involvement in politics makes the opposition to her appointment more puzzling, if we are to assume she was being given fair consideration on her own merits and not being treated as a political entity.

    Notice how Somerby cannot conceive that she might be better at judging than either Warren or Marshall, because of her training and experience prior to her appointment! This is what bigotry looks like.

    1. You misread Somerby.

      His key sentence is “Only a tribe caught in a type of moral panic would want to invest itself in such pointless, invidious claims.”

      He attacks, not Jackson, but the very idea that one judge can be considered more qualified than all other judges. He thinks it is as pointless and invidious to make that claim for Jackson as it is to make it for any other judge.

    2. Yes, I saw Somerby say that and I posted the ABA's criteria for rating judges and the ratings given to previous nominees, who were not all considered the same in terms of qualifications. The ABA (American Bar Association) does not consider all judges to be alike in terms of qualfiications, and they ought to know since they are the professional organization for judges and lawyers.

      Who is Somerby (or you) to set yourself up as experts on whether there is any way to evaluate the qualifications of professionals such as judges? Somerby has no training that would allow him to dispute the ABA's ratings. I doubt you do either.

      So, Somerby's idea that it is pointless and invidious to accept the evaluations of Jackson's achievements is itself an example of racism because he sure didn't say the same thing when Kavanaugh was being confirmed. He was busy judging the truthfulness of Kavanaugh's accusers, just like all the other conservatives were doing.

      I didn't misread Somerby. I disagreed with him. There is a big difference here. You need to read more carefully if you are going to try to defend Somerby.

    3. Suppose the American Music Association determined the greatest song of all time was Ravel’s Piano Concerto for the Left Hand? Would I have to be a musician, or an expert in music, to know this claim to be pointless? If the Society of Political Bloggers adjudged Bob Somerby the greatest political blogger of all time, would non-bloggers like you be compelled to agree? (after all you have no blogging expertise)

      Here are some of the qualities the ABA assesses during its evaluation: judicial temperament, character, general reputation, industry and diligence.

      I don’t see how expert opinion can enter into their evaluation. These qualities are too soft, too squishy, too distant from anything objective. What is Clarence Thomas’ general reputation? It depends on who you ask.

    4. Yes, you would have to be a musician or expert in music to contest that claim. You would know what you liked, your subjective opinion, but you would not have a basis for deciding which was the greatest. The claim is not pointless because there are standards for composition and performance in music. It is not "anything goes" as Somerby asserts, any more than legal work is. And you dishonestly left out the other qualities the ABA assesses, including integrity and professional competence:

      "For more than 60 years, the ABA Standing Committee on the Federal Judiciary has evaluated the professional qualifications of nominees to the Supreme Court by conducting extensive peer reviews of each nominee’s integrity, professional competence, and judicial temperament. In conducting its evaluations, the Standing Committee focuses solely on a nominee’s professional qualifications. It does not take into consideration a nominee’s philosophy, political affiliation or ideology."

      Professional organizations exist to protect the public by licensing its members, attesting to qualities that it is difficult for the general public to assess without background and training. That's why Somerby's or your opinion, as non-lawyers, would be unreliable because of your lack of knowledge of both the law and how lawyers are expected to do their work (professional ethics). And no, much of this is not "squishy" at all.

      As to Clarence Thomas, you would get a more uniform opinion if you asked lawyers about him than if you asked everyday people, and if you confined their judgment to the qualities the ABA asseses and excluded politics, as they do.

    5. It seems we disagree.

      But I must protest at your saying I “dishonestly” left out 2 of the qualities the ABA assesses. My post said here are “some” of the qualities the ABA assesses. “Some” alerts the reader I am not going to provide them all. And I don’t see how ‘integrity’ and ‘professional competence’ are any less squishy than the others.

  6. "Those days seem to be over for Senator Graham. Compare, contrast and explain."

    Does Somerby really need anyone to explain to him that Graham switched from being McCain's lapdog to being Trump's and that his fealty to his party similarly changed because for Trump loyalty is everything and integrity doesn't exist?

    1. Graham's evil cuts a lot deeper than that.
      He has been central to two coups against
      the United States in his lifetime. Understandable, as he was only rewarded for
      his first.

  7. Somerby pretends that he would have been more in favor of Jackson if she had been a fiery racial activist like Thurgood Marshall or a steadfast Republican party member like Earl Warren. But I doubt he would have been, given that the only thing she said that he approved of was a platitude about parental involvement in education. Did Somerby approve of Kavanaugh because he said he liked beer?

    1. Where did he say he would be more in favor? I didn't see him arguing that.

  8. Meanwhile, this kind of thing is happening in our country:

    "Last week, a civil rights lawsuit against a former Tennessee sheriff's deputy was approved by a U.S. District Court judge. The lawsuit accuses the deputy of baptizing a woman against her will during a 2019 traffic stop. Now the woman who brought the lawsuit has been found dead, News9 reports."

    Cause of death is unknown, pending autopsy.

    1. If you can force a woman to have a baby, why not force her to get baptized? I would feel safer with another woman on the Supreme Court, so that women can retain some rights and not be treated like this by male cretins with badges.

  9. "That tells you a lot about where we are in this country."

    She's not wrong.

  10. Absent Bob's account:

    Merrick Garland : Opportunity for opposition votes: 0

    Our first Black President had to contend with
    Mitch McConnell, a new world southern Gentleman
    and Bob's kind of guy!