Brett Kavanaugh was confirmed to the Supreme Court Saturday by a vote of 50-48, the smallest margin in 137 years, tying a record number of "no" votes for a successful nominee.
That record previously belonged solely to Clarence Thomas, who was approved in a 52-48 Senate vote in 1991. That was the highest number of negative votes received by a high court pick who was actually confirmed. Eleven, mostly Southern and conservative, Democrats crossed party lines to get Thomas through a Democratic-controlled Senate after explosive sexual harassment allegations by Anita Hill.
Following a bruising fight of his own featuring allegations of sexual assault and heavy drinking, Kavanaugh also received the fewest votes of any confirmed justice since Mahlon Pitney was approved 50-26 in 1912 under President William Howard Taft.
The only justice confirmed by a smaller margin than Kavanaugh was Stanley Matthews, nominated first by President Rutherford B. Hayes and then by President James Garfield. Matthews made it through the Senate by a single vote, 24-23, in 1881.
Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., put Kavanaugh over the top on Friday. Sen. Lisa Murkowski, R-Alaska, opposed the nomination but voted "present" on the floor because Sen. Steve Daines, R-Mont., could not vote due to his daughter's wedding. Daines was a Kavanaugh supporter. Vice President Mike Pence presided over the session in case he had to break a tie.
If Murkowski and Daines had both voted, the margin would have been the same but the number of negatives votes would have exceeded those against Thomas at 49.
Kavanaugh’s predecessor, retired Justice Anthony Kennedy, was confirmed by a 97-0 vote in early 1988. But Kennedy was President Ronald Reagan’s third choice for the seat, after Douglas Ginsburg was withdrawn and Robert Bork was rejected 42-58.
Qualified Supreme Court nominees historically received bipartisan support. Antonin Scalia, an anchor of the court’s conservative bloc, sailed through the Senate 98-0 in 1986. John Paul Stevens, who eventually became a leading liberal, prevailed by the same margin in 1975. Swing vote Sandra Day O’Connor was confirmed 99-0 in 1981.
Even the more contentious votes confirming William Rehnquist as associate justice and then chief justice were 68-26 and 65-33, respectively. The Senate did occasionally vote down nominees, such as when President Richard Nixon had to settle for Harry Blackmum after Clement Haynsworth, Jr. (45-55) and G. Harrold Carswell (45-51) were both rejected.
As late as David Souter under President George H.W. Bush (approved 90 to 9) and Ruth Bader Ginsburg (96 to 3) and Stephen Breyer (87 to 9) under President Bill Clinton, bipartisan confirmation processes were routine.
But only half of Senate Democrats voted to confirm John Roberts as chief justice. Samuel Alito received a mere four Democratic votes. Nine Republicans voted for Sonia Sotomayor and just five for Elena Kagan. When Scalia died, a GOP-controlled Senate kept the seat open for a year rather than confirm Democratic nominee Merrick Garland. Neil Gorsuch earned three Democratic votes; Kavanaugh was one Joe Manchin away from being confirmed with only Republican votes.
Republicans remain angry about Bork, whose name has become a verb signifying the unfair rejection of a judicial nominee, over thirty years later. Democrats are still outraged by the treatment of Garland, who did not even receive a hearing. Both parties have steadily escalated their confrontations over filling judicial vacancies.
“Our Supreme Court confirmation process has been in steady decline for more than thirty years,” Collins said in her Friday speech announcing her vote. “One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.”