# 025
What Makes a Good Supreme Court Justice?
Evaluative Criteria in Confirmation Debates
I. Introduction
The process for confirming Supreme Court Justices in the United States, in addition to ensuring that nominees are acceptable to a majority of Senators, also provides a forum for clarifying and illuminating understandings of the Justices’ roles and of the task of interpreting the Constitution. This confirmation process appears to many observers to have undergone dramatic changes during the past three decades. Some critics of the confirmation process lament that it has become too “political,” meaning that the participants seek to appoint justices who will support particular policies rather than justices who are competent and fair, and that this diminishes the Court’s independence. Other observers maintain that political motivations have always played a large role in the confirmation process, and that it is other factors, such as the mechanics of the process and the style of news coverage, that have changed.
In this paper I join the conversation about the confirmation process by examining a limited slice of the public discourse surrounding confirmations. Using both quantitative and qualitative analysis, I examine New York Times coverage of the debates about Louis Brandeis’s nomination to be Associate Justice in 1916, Abe Fortas’s nomination to be Chief Justice in 1968, and Clarence Thomas’s nomination to be Associate Justice in 1991. I am interested in the confirmation debates because they are instances in which the tension between law and politics in the role of a judge is illuminated. In a legal framework, Judges are assumed to impartially interpret the Constitution to come up with objectively correct answers to legal questions. In a political framework, Justices are assumed to have particular outcomes or agendas in mind.
The argument of this paper is that, while the Supreme Court confirmation process has always been political, the participants in the national debates about confirmations have become increasingly willing to articulate their claims in political terms. The rhetoric of confirmation debates has shifted away from a logic of impartiality and towards a logic of ideology. Although claims to impartiality often mask ideological motives, candidates’ ideological leanings are increasingly referenced in arguments made by their supporters and detractors.
II. The Politics of the Confirmation Process
Accounts of the Changes: Interpretations of the Bork Battle
Many accounts of changes in the Supreme Court confirmation process identify the failed nomination of Robert Bork as a watershed. President Reagan nominated Robert Bork to the Supreme Court in the late spring of 1987, and the hearings themselves did not take place until October of that year. During the intervening summer, civil rights groups, feminist groups, consumer rights groups, unions, and other organizations waged an intensive campaign to convince the country and the Senate that Robert Bork was so conservative as to be outside the judicial mainstream. Over 300 groups campaigned against Bork and over 100 groups campaigned in favor of him. Ronald Reagan spoke publicly on Bork’s behalf over thirty times -- an unprecedented number of public statements made by a President about a Supreme Court nominee -- and the White House lobbied Senators relentlessly. During the hearings, Bork was questioned about his method of Constitutional interpretation and his views on various past Supreme Court cases, and he provided lengthy and detailed answers to these questions. His nomination was then voted down in the Senate. The divergent understandings of Bork battle are exemplified by the accounts of James Carey and Michael Pertschuk and Wendy Schaetzel. These accounts illuminate the different ways of understanding the role of public debate, media scrutiny, and ideology-based questioning in the confirmation process.
James Carey, in “Political Ritual on Television: Episodes in the History of Shame, Degradation, and Excommunication,” characterizes the Bork hearings and the accompanying public debate as a “collective social rite” in which Robert Bork was ritually shamed, excommunicated, and degraded.[1] Carey argues that, in considering Bork’s defeat, we should look beyond the battle of political ideologies and focus on the “inherent drama and symbolic efficacy of the process,” which accrued largely because the event was televised.[2] Drawing on Katz and Dayan’s concept of media events[3], Carey theorizes that the Bork hearings served to define the “permissible range of social discourse” in America and to mark out the consequences for transgressing this range.[4] This was accomplished through the ritual demotion of Robert Bork from high status to low status, sacred to profane. In other words, by defining Bork as outside the norm, and thereby symbolically exiling him, the event worked to display and define America’s core values. Carey argues that, although these defining rituals are necessary for all societies, confirmation hearings are an inappropriate forum for them because they do not present a ritualized path to reconciliation.[5] While the media events discussed by Dayan and Katz are fundamentally integrative, confirmation hearings, according to Carey, produce dissensus and “exercises in social cruelty.”[6]
Carey’s argument carries implications for thinking about the role of public debate in the confirmation process and the range of legitimate criteria for assessing nominees. By describing the Bork hearings as functioning primarily to ritually degrade the nominee, Carey casts doubt on the legitimacy of the stated goals and claims of the groups opposing Bork. By using terms such as “shame” and “degradation,” and by grouping this confirmation battle with “episodes of systematic and sanctioned misanthropy” and “witch hunts,”[7] Carey paints a picture of Bork’s opponents as engaged in a cruel, irrational act of mob politics, rather than as carrying out a reasonable, legitimate campaign for social justice. Finally, by arguing that the confirmation hearings were an inappropriate forum for the process he describes, Carey implies that the hearings were somehow vulgar and unseemly.
Michael Pertschuk and Wendy Schaetzel’s book The People Rising: The Campaign Against the Bork Nomination presents a very different interpretation of the Bork hearings and debate. Pertschuk and Schaetzel argue that Bork’s opponents were engaged in “high democracy, not low politics,” and that their efforts were a necessary and moderate response to Reagan’s politicizing of the judiciary.[8] They contend that the opponents’ claims were based on a sophisticated understanding of the underlying legal issues and a reasoned, justified repudiation of Bork’s constitutional vision.[9] They also point out that characterizing the debate and its participants as “inappropriate” serves to obscure the legitimate questions of ideology and Constitutional interpretation that were at issue. The People Rising is not a theoretical treatise, but, like Carey’s piece, it contains underlying assumptions about how the confirmation process should function. Pertschuk and Schaetzel’s reading of the event is rooted in two fundamental assumptions: first, that Supreme Court nominees should be closely scrutinized by the press and citizens’ groups, and second, that a nominee’s ideology, method of Constitutional interpretation, and views on specific Supreme Court cases are legitimate criteria for evaluating Supreme Court nominees.
After Bork’s defeat, many observers called for reform of the process. The 20th Century Fund, a nonpartisan foundation that supports and organizes public policy research, brought together a task force of academics, lawyers, and government officials to assess the confirmation process and submit a proposal for changes. The task force findings, published in 1988, were sharply critical of the process. They concluded that the process had become too visible, that it was functioning too much like an election, and that the various participants were using the hearings to promote their own agendas. The task force made four recommendations for fixing the confirmation process. First, they said that it should be “depoliticized” by minimizing the potential for participants to use the hearings to pursue their own agendas and promote themselves. Second, they said that nominees should not be required to testify in person during the Senate Judiciary Committee’s hearings on confirmation. Third, they said that if it was absolutely necessary for nominees to testify, Senators should be prohibited from asking the nominees about how they would rule on specific issues. Fourth, they said that the decision about whether or not to confirm a nominee should be based on a nominee’s written record and the testimony of legal experts as to his or her competence.[10]
These recommendations were controversial, even among the members of the task force. From the ten-member task force, one member dissented from all of these conclusions, another dissented from recommendations two and four, and another dissented from the conclusion that the process functions too much like an election.[11] These disagreements, and the divergence between Carey and Pertschuk/Schaetzel, indicate a lack of consensus in normative visions of the confirmation process. However, underlying these disagreements is a fundamental understanding that the confirmation process changed in important ways with the Bork battle: publicity and interest group participation reached unprecedented levels and the nominee’s expected future decisions from the bench, rather than his or her legal competence, became the main criteria used for assessment.
Putting the Changes in Context: Political Motivations, Participation, and Publicity
John Anthony Maltese, in The Selling of Supreme Court Nominees, argues that reformers who call for a return to emphasizing legal competence in evaluating nominees display a desire to return to an idealized time that never existed.[12] He contends that many critics of the process falsely assume that considerations of nominee’s ideologies are new to Supreme Court confirmations, when they are in fact as old as the process itself. What has changed, he says, is that the process is now more public and incorporates more participants.
Maltese agrees that the publicity and the participation of interest groups did reach unprecedented levels during the Bork battle. However, his argument suggests that these changes need to be viewed in historical context. These changes do not indicate a radical break with the past, but rather are a manifestation of developments that have been unfolding since the end of the Civil War. In fact, Maltese contends that the first nominee to be “borked,” or defeated by a lobbying and public relations campaign based on his political views, was John Rutledge, whose nomination to be Chief Justice was rejected by the Senate in 1795 largely because of his public opposition to the recently signed Jay Treaty.[13] Federalist newspapers, which supported the treaty, attacked Rutledge for his opinion, asserted that he was not dignified enough for the office of Chief Justice, and called for an inquiry into his personal affairs. Federalist Alexander Hamilton lobbied Senators to reject Rutledge, alleging that he was insane.[14] Rutledge was rejected by the Senate in a 14-10 vote. Maltese argues that, in its incorporation of name-calling, public appeals, charges of personal impropriety, and political partisanship, the battle over John Rutledge displayed many of the characteristics that contemporary observers have claimed are recent and dangerous developments. He shows that confirmations throughout United States history have displayed these characteristics.[15]
Article II Section 2 of the Constitution gives the President the power to appoint Supreme Court Justices, but dictates that he must do so with the “advise and consent” of the Senate.[16] What this has come to mean is that the President nominates a candidate, and the Senate screens the President’s choices and votes to confirm or reject them. Maltese shows that, because the Constitution provides no clear guidelines on what “advice and consent” means or how much power it accords to the Senate, the mechanics of the confirmation process have often been debated, and have been shaped by political norms rather than following a clear rule.[17] Different political camps have advocated a strong Senate role at different times, depending on what each camp would have to gain from this state of affairs. For example, during the first few decades of the 20th century, economic conservatives dominated the Supreme Court and liberals and progressives espoused vigilant screening of nominees by the Senate, while conservative Senators advocated deference to the President’s judicial choices. In the 1950s and 1960s, when the liberal Warren Court infuriated conservatives, the political camps switched arguments, and conservatives advocated vigilant screening by the Senate, while liberals advocated deference to the President.[18]
What this demonstrates, according to Maltese, is that the confirmation process has always been an inherently political process, shaped by “changing political dynamics, contemporary concerns, and the balance of power.”[19] However, Maltese concedes that some aspects of the confirmation process have changed dramatically in the late 20th century. What is new, Maltese says, is that the process, once comprised of government officials debating with each other, now includes a wider variety of participants, and these participants – both old and new -- have increasingly oriented their appeals towards mobilizing public opinion.
Maltese attributes these changes primarily to institutional changes that have given interest groups more leverage in the confirmation process and have made public opinion more important to governance. Until 1913, Senators were chosen by state legislatures rather than by popular elections, so the threat of electoral retaliation for voting to confirm unpopular nominees was not immediate. The ratification of the 17th Amendment in 1913 provided for direct, popular election of Senators, thus giving interest groups a way to pressure Senators. [20] Until 1929, Senate debate about Supreme Court confirmations was closed to the public unless two thirds of Senators voted to open it and there was no roll-call vote, so it was difficult for constituents to find out how specific Senators had voted. In 1929, Senate rule changes mandated that debate on Supreme Court confirmations be open to the public, making Senators more accountable for their decisions.[21]
Maltese argues that as the participants such as interest groups learned that they could influence Senators by mobilizing public opinion, they began making increasingly frequent public appeals regarding confirmations. Additionally, although they previously had maintained scrupulous public silences during confirmation debates, Presidents began in the 20th Century to “go public” to make their cases. Maltese explains that the founders were afraid of too much “pure” or “direct” democracy, and believed that government, particularly the Supreme Court, should be “insulated from the whims of public opinion.” However, the 20th century produced new interpretations of the Constitutional order, and Presidents increasingly used public appeals to gain support for their policies. Political scientist Sam Kernell has elaborated this model of Presidential power, which he calls “going public.” In this framework, Presidential power is equated with the ability to shape public opinion, and the result is an unending campaign.[22] Nominees have also increasingly been called upon to testify at their hearings and have personally lobbied Senators and met with journalists.
Maltese’s account provides a useful guide for understanding the confirmation process and the ways in which it has changed. However, I believe that the entrance of new participants such as interest groups and the increasingly public orientation of the process do not tell the only story that there is to tell. By focusing on the language and rhetorical framing in the struggle over opinion, I hope to supplement Maltese’s account and highlight the ways in which people have understood the role of Supreme Court Justices.
III. Conceptual Framework: Ideology and Impartiality
To analyze the arguments made about the suitability of particular candidates to be Supreme Court Justices, I looked at New York Times coverage of the confirmation battles over Louis Brandeis, Abe Fortas, and Clarence Thomas. The results of this study suggest that the political motivations in confirmations are increasingly articulated as such. Arguments reported by the New York Times about the suitability of particular candidates have demonstrated an increasing willingness on the part of debate participants to use the candidate’s ideology as a criterion for assessment.
The significance of this issue stems from the fact that arguments advanced during confirmation debates contain implicit assumptions about what the role of the Justices should be, and correspond to different understandings of how the Supreme Court should function in a democracy. The argument that nominees should be evaluated based on their competence and temperament suggests that a Justice’s role is to reach the correct answer to each Constitutional question. This view is articulated by Alexander Hamilton, who argues in the Federalist Papers that judges should not be in a position that encourages them to “consult popularity” and that their position must “justify a reliance that nothing … be consulted but the Constitution and the laws.”[23] The argument that nominees should be evaluated based on their views about specific cases suggests that there are different ways of approaching each Constitutional question. Furthermore, some critics have argued that the democratic goal of government accountability is subverted by the existence of such a powerful institution over which the electorate has no control.[24] From this point of view, citizens can and should seek to find out how what kinds of decisions each nominee is likely reach.[25]