Borking Predates Bork

By Benjamin Wittes
Sunday, July 30, 2006

"Can it be different?" Chief Justice John G. Roberts Jr. mused. "Of course it can be different. If there are serious questions about qualifications, senators should explore those. If there are serious questions about ethics, senators should explore those. If there are disputes about appropriate judicial philosophy and approach, talk about those. But barring that . . . everybody doesn't have to think that this is an opportunity for them to be the reincarnation of Clarence Darrow."

It was mid-afternoon on Jan. 13, the day the Senate Judiciary Committee wrapped up its hearings on Samuel A. Alito Jr.'s nomination to the Supreme Court. Roberts, in an interview with me in his chambers, was reflecting on his own recent confirmation. While he didn't complain about a process that had worked out well for him, he clearly wasn't satisfied. And who can blame him? Even under the best of circumstances -- and Roberts's circumstances were about as favorable as a conservative nominee can hope for these days -- the modern process for confirming judges plays rough, thrives on unpleasantness, and pressures nominees to make promises concerning their future jurisprudence.

"There's no reason to suppose that [a judicial confirmation] couldn't be a very uplifting, educational, informative discussion," Roberts said, adding: "People don't have to view it as a grilling or a cross-examination, or an effort to come upon a 'gotcha' moment. . . . Maybe that's overly idealistic, but I don't know why it should be."

Roberts indeed sounds overly idealistic. If the history of judicial confirmations proves anything, it is that the hearings were never meant to be a thoughtful inquiry into a nominee's judicial philosophy. Rather, their point has always been to wring concessions from would-be jurists or to tar them as unworthy. Since live testimony by nominees became standard after the Supreme Court's 1954 decision striking down segregated public schools, senators have sought to pressure nominees into swearing allegiance to contested ideas, or to make statements that provide ground for opposition.

That is what the hearings still achieve today. They function coercively not because they are failing their intended purpose. Coercion is their intended purpose.

In conservative mythology, fierce, ideological Supreme Court confirmation battles began with Robert H. Bork's nomination in 1987 -- before which the Senate considered nominees with minimal regard for politics. In liberal lore, the issue is not the confirmation process but the right-wing packing of the courts by Republican presidents; liberal senators must become more aggressive as conservatives threaten a judicial takeover. Many liberals also complain that nominees can easily disguise their real views during their hearings.

Neither story line rings true. Certainly, the confirmation process has changed dramatically over the past half-century. Confirming judges, particularly for lower courts, now takes much longer, and party-line votes on nominees have become common. Presidents cannot even fill routine court vacancies without long fights.

But this evolution began long before the Bork hearings. In truth, there was no Golden Age in which senators evaluated nominees purely on their merits. Bork was not even the first nominee to get Borked. Louis D. Brandeis, the first Jewish justice, suffered a hostile confirmation battle in 1916, one focused on his progressive politics and colored by anti-Semitism. Chief Justice Charles Evans Hughes faced intense ideological resistance from progressives in 1930, the same year they defeated a qualified nominee named John Parker Jr. Segregationists opposed Justices John Marshall Harlan, Potter Stewart and -- with particular nastiness -- Thurgood Marshall. Lyndon B. Johnson's nomination of Abe Fortas as chief justice and Richard M. Nixon's nomination of Clement Haynsworth both faced ideological opposition, in addition to the ethics allegations for which their defeats are mainly remembered.

The watershed moment for the modern confirmation system was Harlan's nomination in 1955, which followed the Supreme Court's decision in Brown v. Board of Education . The debate over Harlan launched the tradition that has become the ugly centerpiece of every Supreme Court nomination: the nominee's testimony before the Senate Judiciary Committee.

Previously, the Senate usually considered nominees without hearing from them. But after Brown , segregationist senators began "inviting" nominees to testify to pressure them against desegregation. Liberals initially resisted such questioning as an affront to judicial independence. The New York Times objected to the segregationist interrogation of Harlan, writing in an editorial that "if this line of questioning were to be followed further any candidate for the federal judiciary would have to satisfy the majority of the Senate Judiciary Committee that he was in line with that majority's view."

But then Nixon took office and began making nominations, and liberal senators went from decrying such tactics to adopting them. During the hearings for Haynsworth, Sen. Philip Hart (D-Mich.) admitted to the nominee that he was "trying to figure out a device that would enable me not to backtrack on the position I have taken earlier, and nonetheless . . . find out if we were asked to consent to the nomination of a man who thought that the direction of the Supreme Court under Earl Warren should be reversed or modified." Haynsworth sagely interjected that this "is very hard to do." And Hart, completing his conversion, declared that on the answer to that question "hinges, I suspect, my vote."

During the Roberts hearings last year, senators pressed him on abortion, executive power, civil rights and other issues. And the pressure continued during the courtesy calls Roberts had to pay to senators -- obligatory private visits in which senators press their concerns and lobby for specific outcomes.

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