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Brett Kavanaugh Is The Latest Troubled Supreme Court Nominee

STEVE INSKEEP, HOST:

Let's recall a Supreme Court battle before the one we're living through now. Judge Brett Kavanaugh's contentious Senate hearing last week recalled some earlier ones, including a 1987 showdown between Democratic senators and then-federal appeals court Judge Robert Bork, who'd been nominated to the Supreme Court. Senator Ted Kennedy led the attack.

(SOUNDBITE OF ARCHIVED RECORDING)

TED KENNEDY: In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women. And in our America, there should be no seat on the Supreme Court for Robert Bork.

INSKEEP: The Senate went on to reject the Bork nomination. And eventually, Anthony Kennedy was appointed to the court in his place, the very seat that is being battled over now. So let's ask Cokie about the sometimes-contentious nomination process - commentator Cokie Roberts, who answers your questions each week about how politics and the government work. Hi, Cokie.

COKIE ROBERTS, BYLINE: Hi, Steve.

INSKEEP: Here's our first question.

MELISSA OZBECK: My name is Melissa Ozbeck from Santa Clara, Calif. I'm wondering how often has a hotly contested nominee failed to be confirmed, if ever. And what happens to hotly contested nominees after the confirmation process has ended? How does it affect their legacy or not?

ROBERTS: Well, out of 163 nominations that presidents have sent to the Senate, 125 have been confirmed, many on voice votes. And some have withdrawn without ever having been voted on. Some have died.

INSKEEP: Voice vote - that means that it's not controversial...

ROBERTS: Not at all.

INSKEEP: ...And they just - all in favor say, aye, and they just go right on.

ROBERTS: Only about a dozen have been rejected. But the first was in the administration of George Washington.

INSKEEP: Wow.

ROBERTS: ...When the Senate refused to remove Justice John Rutledge into the chief justice spot because he disagreed with them over a treaty with Britain. And then Lyndon Johnson's 1968 decision to move Justice Abe Fortas up to chief also failed in the Democratic Senate. He was the first to be rejected since Rutledge. But by the way, he was also the first to appear before the Judiciary Committee.

INSKEEP: Wow. So the other part of her question is interesting because Brett Kavanaugh has been saying, you've ruined my life with this confirmation process. What does happen to nominees after a contentious fight like this?

ROBERTS: Different ones have different courses. Robert Bork resigned from his judgeship and went on to write books and make speeches. Then the man President Reagan named after Bork failed. Judge Douglas Ginsburg was forced to withdraw because he had illegally smoked marijuana. But he stayed on the federal appeals court until he took senior status a few years back.

INSKEEP: Kevin Crow writes to ask, assuming Kavanaugh is confirmed, if it's later found that he lied in front of the Senate Judiciary Committee, could that cause him to be removed?

ROBERTS: It would be highly unlikely. The way you remove a Supreme Court justice is through impeachment, just like the president. Only one justice has ever been impeached by the House, and he was not convicted by the Senate. That was Samuel Chase in 1804. Thomas Jefferson wanted him off the court because he disagreed with him politically. He accused him of partisan rhetoric. John Randolph in the House of Representatives said he'd wipe the floor with Chase, so this nastiness is hardly new. But then the Senate failed to go along, and that pretty much ended the idea of removing a justice for political reasons.

INSKEEP: And that leads to another question.

KELLY MAHER: Hi. This is Kelly Maher from Bristol, Conn. I was wondering, do other comparable countries have lifetime appointments? And have there been any other nominees similar to what is going on now? If so, what was the result?

INSKEEP: Yeah, what is it with these lifetime appointments?

ROBERTS: Well, lots of judicial plans in various countries, most do have either a term limit or a mandatory retirement age. Some have both. There have been talk of 18-year term limits for Supreme Court justices here - not likely to go anywhere.

INSKEEP: That would require a change in the law or in the Constitution.

ROBERTS: Constitution.

INSKEEP: OK. Cokie, thanks very much.

ROBERTS: Thank you, Steve.

INSKEEP: That's commentator Cokie Roberts. And you can ask Cokie your questions about how politics and the government work by tweeting us with the hashtag #AskCokie.

[POST-BROADCAST CORRECTION: During this conversation, we say that with his 1968 nomination to be chief justice, Abe Fortas became the first Supreme Court nominee to be rejected by the Senate since John Rutledge in 1795. In fact, Fortas' nomination for chief justice was withdrawn. And, seven nominations considered by the Senate were rejected between Rutledge's nomination and Fortas' in 1968. Also, we say that Fortas was the first nominee "to appear before the Judiciary Committee." In fact, according to the Congressional Research Service the first nominee to testify before the committee was Harlan Stone in 1925.] Transcript provided by NPR, Copyright NPR.

Corrected: October 4, 2018 at 12:00 AM EDT
During this conversation, we say that with his 1968 nomination to be chief justice, Abe Fortas became the first Supreme Court nominee to be rejected by the Senate since John Rutledge in 1795. In fact, Fortas' nomination for chief justice was withdrawn. And, seven nominations considered by the Senate were rejected between Rutledge's nomination and Fortas' in 1968. Also, we say that Fortas was the first nominee "to appear before the Judiciary Committee." In fact, according to the Congressional Research Service the first nominee to testify before the committee was Harlan Stone in 1925.