Antonin Scalia’s death has opened a seat on the Supreme Court, and the confirmation fight promises to be a doozy. Just hours after the news broke, Senate Majority Leader Mitch McConnell (R-Ky.) pledged to block any Obama nominee. The president vowed to make a selection anyway .
Of course, Senate confirmation of a Supreme Court justice is never easy. And in the 20th century, the process became particularly contentious, with each political party asserting that a nominee from the other side would endanger Americans’ constitutional rights. Here’s a list of the books that offer the best discussion of these highly political, often brutal fights.
When President Ronald Reagan nominated right-wing darling Robert Bork to replace centrist Lewis Powell, Democrats balked. Bork was defeated, a loss that reverberates to this day with conservatives, who think Bork was unjustly smeared. Bronner’s book is a thorough study of this defining moment in constitutional history.
Just four years after Bork’s defeat, the Thomas hearings exploded over Anita Hill’s claims that Thomas made unwanted sexual advances toward her as her supervisor. The hearings made great television. Mayer and Abramson’s book, released three years later, examined the nomination in incredible detail, offering fresh evidence and analysis suggesting that Thomas was, in fact, guilty.
Thomas’s telling of his confirmation hearings offers a sharp contrast to Mayer and Abramson’s account. In his memoir, he writes about the pain this period caused. As the New York Times wrote in its review, “His critics might not be moved by his political arguments, but his memoir gives them a man, not a caricature, to attack.”
Maltese takes a deep dive into the nomination process, looking particularly at the role of interest groups. The book covers every nomination from the 1795 defeat of John Rutledge, who had served a few months as chief justice through a recess appointment, up to Stephen Breyer. But a chapter on the 1930 nomination of John J. Parker is particularly revealing. Parker was the 20th century’s first unsuccessful nominee, defeated by the combined efforts of organized labor and civil rights leaders.
Brandeis was reviled by big business and anti-Semites, and his 1916 nomination was hotly contested. Former president William Taft sent a letter to the Senate calling the nomination “an evil and a disgrace.” Harvard University President Abbott Lawrence Lowell claimed that Brandeis was “unscrupulous” and lacked “judicial temperament and capacity.” Urofsky’s towering biography details the life of the greatest justice of the 20th century, offering incredible insight into the century’s first explosive confirmation debate.
President Franklin Roosevelt’s selection of Sen. Hugo Black of Alabama as a Supreme Court nominee was, to put it mildly, unpopular. Much of Roosevelt’s New Deal legislation had been invalidated by the Supreme Court, and critics — including Herbert Hoover — complained that with Black, the court would be “one-ninth packed.” Eventually senatorial courtesy, whereby the Senate always confirmed one of its own, prevailed. Afterward, it was revealed that Black (who became a great justice) was once a member of the Ku Klux Klan. Newman’s superb biography, one of the most painstakingly researched and comprehensive accounts of the justice’s life, illuminates both episodes.
Kalman’s biography on Fortas is full of interesting details. For example: Fortas was a confidante of President Lyndon Johnson but turned down his entreaties to accept a Supreme Court seat. Johnson wouldn’t take no for an answer. He summoned Fortas to the White House and said he was nominating him anyway, just minutes before he stepped in front of the TV cameras and told the world.
The book offers a great primer on Senate confirmations, beginning with John F. Kennedy’s nomination of Marshall to the U.S. Court of Appeals for the 2nd Circuit in New York. Southern lawmakers tried to smear and defeat him, a gambit that ultimately failed. It continues with Johnson’s nomination of Marshall to the Supreme Court.