Saturday, April 9, 2022

Supreme Court Confirmation Hearings Serve a Purpose

           Republican senators made such a mess at confirmation hearings for Supreme Court nominee Ketanji Brown Jackson that two longtime Court watchers called for eliminating the process altogether for future nominees. Columnists David Lauter and Charles Lane aired their views in their home newspapers, the Los Angeles Times (March 25) and the Washington Post (March 30). Lauter and Lane both worked the Supreme Court beat as reporters for several years before their current roles as columnists.

            History actually proves the value of Supreme Court confirmation hearings, however ugly and uninformative Jackson’s was and others before hers. The first of the nominees to be subjected to a Senate committee hearing was Louis Brandeis, the prominent advocate for consumers’ and workers’ who was nominated in 1916 by President Woodrow Wilson to be the first Jewish justice in the Court’s history. As author Ronald Shafer recalled in a recent retrospective, the practice was ugly from the start.

            Brandeis survived the grilling, which was tinged with overt antisemitism, to win Senate confirmation by a decisive 47-22 vote and to win a reputation as one of the Court’s great justices after serving for twenty-three years until his death in 1939. Through history, many other nominees have survived Senate committee hearings to win confirmation and serve with distinction, including, for example, Hugo Black in 1937 and such more recent justices as Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994 respectively.

            Jackson proved her entitlement to the Supreme Court seat by demonstrating grace, patience, and discretion during more than eighteen hours of grilling by GOP senators who found in her distinguished record points of vulnerability susceptible to partisan attacks. Jackson did so well that she convinced three Republican senators – Romney, Collins, and Murkowski – to break party ranks and to give her a measure of bipartisan support in the eventual 53-47 confirmation vote.

            In fact, no worthy Supreme Court nominee has failed confirmation after a committee hearing and Senate floor vote since the Brandeis precedent a century ago. But confirmation hearings have been instrumental in the Senate’s rejections of four partisan twentieth-century nominees who were rightly denied seats on the nation’s highest court. In the first of those episodes, the Senate rejected President Hoover’s nomination of the federal judge John Parker in 1930 on a 39-41 vote after a Senate hearing exposed Parker’s anti-labor and racist views as elaborated by witnesses from the AFL-CIO and the NAACP.

            In more recent memory, the Senate rejected two of President Nixon’s nominees: Clement Haynsworth and G. Harrold Carswell in 1969 and 1970 respectively after committee hearings exposed their discreditable records as federal judges on race and labor issues and, in Carswell’s case, his mediocre academic and professional qualifications.

            In each of those instances, the Supreme Court and the country emerged as winners as presidents responded by choosing nominees with better judicial temperaments. Hoover responded to Parker’s defeat by nominating Owen Roberts; Nixon chose Warren Burger and Harry Blackmun for the seats that would have gone to Haynsworth and Carswell.

            The modern history of Supreme Court confirmations begins with the Senate’s 58-42 rejection of President Reagan’s nomination of the arch-conservative Robert Bork in 1987. Lost-cause Republicans and conservatives have argued for more than three decades now that Bork was wrongly subjected to partisan attacks and defeated by a mostly partisan vote despite his exemplary academic and professional qualifications.

In fact, six Republicans joined Democrats in rejecting Bork’s nomination by the widest margin in history for an unsuccessful Supreme Court nominee. Bork earned the rejection by testifying in opposition to the constitutional right to privacy and by looking forward to what he called “an intellectual feast” as a Supreme Court justice rather than as a guardian for liberty and justice. With Bork’s defeat, Reagan turned to a well-respected federal judge, Anthony M. Kennedy, who was confirmed in a unanimous Senate vote and served with distinction for three decades despite grumbling from conservatives about his landmark gay rights decisions.

President Obama’s two nominees, Sonia Sotomayor and Elena Kagan, underwent partisan grilling by Republican senators in 2009 and 2010 respectively and went on to win confirmation by decisive bipartisan votes: 68-31 for Sotomayor and 63-37 for Kagan. By contrast, President Trump’s three Supreme Court nominees failed to win any significant support from across the political aisle. Three Democrats, wary of impending midterm elections in their home states, voted for Gorsuch in 2017. Kavanaugh got only one Democratic vote in his 52-48 confirmation in 2018; Barrett received no votes from across the political aisle and became the first justice in more than a century to win a Supreme Court seat without a single vote from a senator of the opposing party.

It can also be noted that Clarence Thomas and Brett Kavanaugh masterfully used their hearings to win public and senatorial support in the face of contentious accusations of sexual misconduct before taking the bench. Without the opportunity to address the accusations in person, both of them might have fallen short of confirmation.

Lauter and Lane provide no details on how they expect the confirmation process to be completed without testimony from the nominees themselves. And it seems very unlikely that either the Senate or the American public would be willing to entrust a lifetime Supreme Court seat to a nominee without a close public examination of the nominee’s qualifications and views.


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