BAKERSFIELD, Calif. (KGET) — The ongoing U.S. Supreme Court confirmation process involving federal Judge Ketanji Brown Jackson moves on to a Senate Judiciary Committee vote Monday. If she is approved, or even in the event of a tie, she is expected to face an up or down vote of the full Senate by April 9.
That would make 40 days since her nomination by President Biden – which, in the postwar era is actually quite speedy. Once upon a time, though, 40 days would have been regarded as agonizingly slow. Then along came Bakersfield’s own Earl Warren.
There was a time when Supreme Court confirmation votes took place before the ink dried on the president’s nomination decree. In fact, seven Supreme Court justices were confirmed by the Senate the very same day they were formally nominated by the president. Of the 115 people who’ve served on the court throughout its history, 61 — more than half – were confirmed within 10 days of their nominations.
Then Warren, the three-term California governor raised in a humble little house on Niles Street in east Bakersfield, was nominated by President Dwight Eisenhower. Warren’s approval took 49 days, setting a postwar standard for drawn-out confirmations that later nominees would eventually crush.
It wasn’t that Warren was a controversial figure. It was more a case that after World War II, the world had changed. And that, sadly, in the world now facing Brown, nominated by Biden in late February.
Eisenhower had promised the first available Supreme Court nomination to Warren, one of Eisenhower’s chief 1952 national convention rivals, to remove him as a possible challenger in 1956, and on Sept. 8, 1953, Chief Justice Fred Vinson suffered a fatal heart attack and Eisenhower, after some initial hesitancy, nominated Warren to replace him.
One might have expected the confirmation process to go fairly smoothly: Here was a three-term governor who at one point was, simultaneously, the nominee of both the California Republican and Democratic parties. The Republican senator from North Dakota, chairman of the Senate Judiciary Committee, charged that Warren followed “the Marxist line” — an all-purpose condemnation, which still gets traction today, that echoed what Sen. Joseph McCarthy had been throwing around in historic hearings.
Those objections fell away after prominent Judiciary Committee members on both sides of the aisle called them “rubbish” and ”tommyrot.” The Senate confirmed Warren on a voice vote (with no audible noes) on March 1, 1954.
Warren went on to serve 16 years as chief justice, writing some of the most sweeping and controversial decisions in the court’s history, including Miranda v. Arizona, and Brown v. Board of Education, which decreed that racial segregation of children in public schools was unconstitutional. Eisenhower had asked Warren to consider the perspective of white parents in the Deep South in deciding that case, and the decision infuriated the president. Warren’s appointment was “the biggest damned-fool mistake I ever made,” Eisenhower later famously complained.
But then Supreme Court justices cannot be, and should not be, counted on to submit to the positions of the presidents who nominate them.
Donald Trump was able to appoint three justices to the Supreme Court, the most of any one-term president in history, but his nominees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – voted with the majority to reject his bid to overturn the election results in Texas. Trump called it a “disgraceful miscarriage of justice.”
Joe Biden would be wise, therefore, not to get his hopes up too much about Ketanji Brown Jackson. But that’s the chance a president takes when he nominates a judge to the federal bench and hopes the blind eye of justice leans a little in his direction.