Want to Know Where Supreme Court Nominees Stand? Don’t Bother Asking
Over the last three decades, nominees to the United States Supreme Court have been made keenly aware that the moment the president taps them on the shoulder they are effectively Mirandized. Anything they say may be, and almost certainly will be, used against them.
It wasn’t always thus. But an imperative to say as little as possible and pretend one is a juridical blank slate has been close to inviolate since 1987. That was when Robert H. Bork, a federal appellate judge named to the Supreme Court by President Ronald Reagan, testified expansively and combatively as he expounded his conservative judicial philosophy at his Senate confirmation hearing. He did himself no favor. Senators concerned that a Justice Bork would turn back the clock on established civil and individual rights rejected his appointment by a solid majority made up of both Democrats and Republicans. In the process, they changed the nomination dynamic, perhaps for good.
Retro Report, a series of video documentaries that examine major news stories of the past and their lasting consequences, looks back at the Bork hearing as the Senate Judiciary Committee prepares on Monday to consider President Trump’s nomination of Judge Neil M. Gorsuch to the Court. Will Judge Gorsuch, a conservative reasonably in tune with the Republican Senate majority, speak bluntly about his legal philosophy and how he would apply it to specific contentious issues? Las Vegas bookies would probably give better odds on the hapless last-place Brooklyn Nets winning the professional basketball championship.
Post-Bork, the Senate hearings have tended to shed little light. “These brilliant judges, these brilliant prosecutors are asked basic questions about the law, and they don’t answer it,” Andrew Cohen, a fellow at the Brennan Center for Justice at New York University Law School, told Retro Report. “They evade. They obfuscate. They basically plead the Fifth, if you will.”
A rhetorical version of dodge ball is a favored tactic for nominees regardless of where they stand on the political spectrum. It has been employed successfully by a liberal like Ruth Bader Ginsburgand by a conservative like Clarence Thomas. John G. Roberts Jr., at the 2005 Senate hearing on his nomination as chief justice, famously likened his role to that of an umpire calling balls and strikes, a disinterested neutral force. He did not mention that, as chief justice, he would have a mighty hand in shaping the contours of the strike zone.
Is the public well served by the nominees’ reticence? Mr. Cohen, for one, thinks not. “The American people don’t get a clear sense of where they really stand,” let alone what they are “going to be like once they got on the court,” he said.
Senate hearings for court appointees, now an enduring ritual, are a relatively modern phenomenon. None had gone before the judiciary committee before Harlan Fiske Stone did in 1925. Fourteen more years passed until a second nominee appeared: Felix Frankfurter. Byron R. White, named to the court in 1962 by President John F. Kennedy, had a committee hearing that lasted all of 11 minutes.
That was ancient history by the time Bork, who died in 2012, entered the hearing room. Things went so badly for him that his surname came to be enshrined as a verb, including in the Oxford English Dictionary. It defines “to bork” as “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office.”
To many conservatives, Bork was a brilliant, highly qualified jurist who fell victim to unbridled and unfair liberal hostility. To many liberals, however, his advocacy of “originalism” — limiting constitutional values to those clearly articulated by the framers — threatened to curtail hard-won rights for broad swaths of America, notably minorities and women.
Bork hardly helped his cause with a public mien that struck many as severe, even forbidding. A staunch supporter like John C. Danforth, then a Republican senator from Missouri, acknowledged to Retro Report that the nominee’s manner “played into the hands of those who were trying to defeat him.”
Often cited is an exchange between the judge and a sympathetic Republican senator, Alan K. Simpson of Wyoming, who tossed a softball question: Why did the nominee want to be a Supreme Court justice?
“That’s of course the court that has the most interesting cases and issues,” Bork replied, “and I think it would be an intellectual feastjust to be there.”
The response struck more than a few listeners as bloodless. “That’s not what people want to hear when they want a Supreme Court justice to be confirmed,” Robert C. Post, dean of the Yale Law School, told Retro Report. “What they want to hear is, ‘I want to serve justice. I want to serve the American people. I want to protect the Constitution, not ‘I want to gratify my taste for difficult legal problems.’”
Ultimately, that court seat went to Anthony M. Kennedy, who in recent years has been the swing vote on some of its thorniest cases. It is easy to imagine several 5-4 decisions, like a 1992 ruling that affirmed the right to abortion, going the other way had Bork been on the bench instead of Justice Kennedy.
Nominees are not often tossed aside, so the odds on confirmation are in Judge Gorsuch’s favor. Since World War II, there have been only seven instances of appointments being withdrawn by the president or rejected by the Senate: Homer Thornberry in 1968; Justice Abe Fortas’s elevation to chief justice, also in 1968; Clement F. Haynsworth in 1969; G. Harrold Carswell in 1970; Bork and Douglas H. Ginsburg, both in 1987; and Harriet E. Miers in 2005.
(Carswell’s rejection by the Senate earned a special place in political lore thanks to an inelegant defense of him by Senator Roman L. Hruska of Nebraska, a Republican. With the nominee summarily dismissed by some as a mediocrity, Hruska offered this: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”)
In a league of his own is Merrick B. Garland, the federal appellate judge nominated last year by President Barack Obama for the seat that Judge Gorsuch now seeks. Judge Garland’s nomination was neither withdrawn nor rejected. It just sat there, going nowhere. The judge was given no hearing. With few exceptions, members of the Senate Republican majority did not offer so much as the accustomed courtesy of an informal getting-to-know-you meeting.
Who knows? Someday he may find that his name, too, like Bork’s, becomes a verb. To garland already means to decorate with wreaths or a string of flowers. Perhaps an alternative definition might evolve: to relegate a respected and qualified nominee to legislative limbo in an exercise of political gamesmanship.
CLYDE HABERMAN, a regular contributor to Retro Report, has been a reporter, columnist and editorial writer for The New York Times, where he spent nearly 13 years based in Tokyo, Rome and Jerusalem. Subscribe to our newsletter here and follow us on Twitter @RetroReport.
This article first appeared in The New York Times.