Why Supreme Court Confirmations Have Become So Bitter: Mini-Lesson
- Examine the nomination and confirmation process for Supreme Court Justices.
- Analyze how the nature of Supreme Court nominations have changed since the defeat of Robert Bork.
- Critique the Advice and Consent process and debate the consequences of how confirmation hearings are currently conducted.
- Civics & Government
- U.S. History
- Social Studies
- Supreme Court
- The Modern Era (1980-Present)
President Biden is hoping for bipartisan support for his nomination of Judge Ketanji Brown Jackson to the Supreme Court. But bitter battles over some recent nominations have set a different precedent.
When Ronald Reagan nominated Robert Bork to the Supreme Court in 1987, Bork’s conservative and often controversial views on civil rights, gender equality, the right to privacy and abortion were well known. As Judge Bork’s candid answers during his confirmation hearing revealed his conservative ideas, Democrats and even some Republicans became convinced that he should never sit on the Court. In the end, the defeat of Judge Bork’s nomination broke along party lines, setting the tone for the partisanship evident in the process today.
In the years since the Bork hearing, judicial nominees have revealed almost nothing publicly about their judicial philosophy, leaving Americans with little or no idea where they stand on defining issues.
- What are the steps in the nomination process for Supreme Court Justices? What constitutional actors are involved?
- How did Bork’s performance in Senate Judiciary hearings contribute to his defeat? How did the results of Bork’s hearings impact this process for future nominees?
This mini-lesson consists primarily of comprehension and discussion questions for students.
Questions for students:
- Why was Robert Bork’s nomination seen as so important to Ronald Reagan and members of the Republican Party?
- How would you compare the stakes and potential consequences of Bork’s nomination to those of recent Justices like Brett Kavanaugh and Amy Coney Barrett? Are they similar to or different from Bork’s nomination?
- Why did Democrats oppose Robert Bork’s nomination? What means did Democrats use, both formal and informal, to prevent his confirmation?
- Joe Biden appears in two different roles in this video, both as a Senator on the Judiciary Committee and as President. How might Biden’s motivations and actions be different in these two roles?
- The video suggests that some legal experts saw the Bork hearings “as a model for how the judicial nomination process should work.” What is meant by this?
- What are the consequences of the current model of judicial hearings? Is this a good thing or a bad thing, and why?
Explain how supporting questions contribute to an inquiry and how, through engaging source work, new compelling and supporting questions emerge.
Distinguish the powers and responsibilities of local, state, tribal, national, and international civic and political institutions.
Evaluate public policies in terms of intended and unintended outcomes, and related consequences.
Analyze the impact of constitutions, laws, treaties, and interna-tional agreements on the maintenance of national and international order.
Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.
Evaluate how historical events and developments were shaped by unique circumstances of time and place as well as broader historical contexts.
Analyze how historical contexts shaped and continue to shape people’s perspectives.
Explain how the perspectives of people in the present shape interpretations of the past.
Explain political principles, institutions, processes, policies, and behaviors.
The powers allocated to Congress, the president, and the courts demonstrate the separation of powers and checks and balances features of the U.S. Constitution.
Presidents use powers and perform functions of the office to accomplish a policy agenda.
Senate confirmation is an important check on appointment powers, but the president’s longest lasting influence lies in life-tenured judicial appointments.
The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice.
Explain how other branches in the government can limit the Supreme Court’s power.
- CON-5.C.1: Restrictions on the Supreme Court are represented by Judicial appointments and confirmations.