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How to Scale the High Court
Such advice has always been relevant, but it has grown more important in the past 20 years, ever since the ultimate cautionary tale of Supreme Court nominations, one with which I am well acquainted: Ronald Reagan's nomination of Judge Robert H. Bork in 1987.
The Reagan White House, as well as Judge Bork himself, asked me to assist with his confirmation. Bork had literally written the textbook on antitrust law while a professor at Yale Law School; he was a former Solicitor General as well as a federal circuit judge; and he had perhaps the most brilliant legal mind of his era. I thought we were in for a fairly routine confirmation.
Boy, was I wrong.
Bork's problem? He was conservative. Suddenly the nomination became a watershed, a battle royale over judicial philosophy. An hour after the White House submitted Bork's name, Sen. Edward M. Kennedy of Massachusetts made his famous statement asserting that Bork would take us back to the days of segregation and back-alley abortions. (I ran into the senator shortly afterward and told him I was putting him down as "undecided.")
Later, the politically biased American Bar Association gave a split rating, with four of the 15-judge-panel deeming Bork "unqualified." Even in this pre-blogosphere era, a state of the art propaganda campaign emerged, complete with television advertisements, speeches and statements by liberal groups and all-night candlelight vigils nationwide. Polls showed that the campaign was working, and senators, especially Southerners, started getting nervous upon hearing from their constituents.
Even Judge Bork's beard became an issue. He had been wearing a rather unusual three- or four-inch long beard, narrow and straggly. Before the hearings even started, accusations flew that Bork was waffling on his positions on various gut issues such as privacy, antitrust and originalism. He was being accused of possible "confirmation conversion." When he asked me about taking the advice of several senators and staffers to shave his beard, I objected. "Yesterday there was a photo in the paper of you with your beard," I argued. "Tomorrow the hearings begin and you want to appear without your beard? That is the ultimate confirmation conversion and proves that you are not holding to your principles."
One memorable event during the hearing occurred when Pennsylvania Sen. Arlen Specter, then a Republican, got into a convoluted discussion with the judge about the "original intent" of the framers of the Constitution. It was amazing to watch those two exceptional legal adversaries go back and forth. The problem was that Bork had broken the 80-20 rule -- one we had drilled him on. That is, making sure that the Senator spoke 80 percent of the time, while Bork responded 20 percent of the time. We were at a 50-50 face-off and losing ground.
During a recess, I admonished Bork to stop arguing with Specter. "But I don't agree with him," he said. "Then just say, 'You make a fascinating case, a very interesting and important legal point' or something," I replied. "You haven't agreed with anything, just found it fascinating and interesting and important. And let's get out from under this thing." Bork nodded. When he returned to the hearing, he said to Specter, "You make a fascinating case, a very interesting and important legal point . . . .BUT . . . ." And he returned to where we started in the neverending colloquy.
The bad news for Bork was that a perfect storm had hit. The Democrats had just taken the Senate, and given that the previous Republican Senate had confirmed three Reagan appointees -- Sandra Day O'Connor, Rehnquist for chief justice and Antonin Scalia ( for whom I also did sherpa duty) -- the Bork nomination was too much for them to take. The final vote was 42-58 against, and one of the major injustices of the era was complete.
Bork was just the beginning of what I can politely call "unpleasantness" in the confirmation of Supreme Court justices. Witness the modern-day "lynching," in the word Judge Clarence Thomas used to describe his confirmation hearing. Witness Justice Samuel Alito's wife crying in the audience during her husband's hearing.
I wish I had a magic formula to change this process. Some have proposed time limits between the nomination and the final vote, or limits on the number of people appearing at hearings. Such proposals would be helpful, but I would settle for a simple return to comity and civility.
And to Sherpa Cutter: If all of the pre-nomination speculation is correct and the nominee is indeed a woman, this won't be an issue. But if it's a guy, and if he happens to have a beard, then no matter what happens, don't let him shave it.
Tom C. Korologos, U.S. ambassador to Belgium from 2004-07, is a strategic adviser at DLA Piper and has assisted in several Supreme Court confirmations.