Center for First Amendment Studies

While other developed countries have kept the judicial appointment process out of the public sphere, that could eventually change, as it did in the United States. Therefore, this study is relevant to public spheres in other nations that might be forced to engage the public with regard to judicial nominations.

Shifting Federal Court Appointments into the Public Sphere

In 1919 President Woodrow Wilson sent the treaty ending World War I to the Senate for approval, which required a two-thirds majority. Senator Henry Cabot Lodge, the Chair of the Foreign Relations Committee, and a historian, gave a speech on the floor of the Senate comparing the treaty's League of Nations to the Holy Alliance of 1812. He then circulated a letter opposing the treaty unless it was amended; this “Round Robin” was signed by a sufficient number of senators to block the treaty. Wilson announced that he would travel the country to drum up support for his treaty, and particularly its League of Nations. Republicans promptly announced that they would send a “truth squad” after Wilson, headed by the progressive Republican Senator Hiram Johnson of California. What followed demonstrated that there was a significant difference between the Senate's sphere of argumentation and the public sphere. Johnson, who had been ridiculed in the Senate after Lodge's display of acumen, resonated with crowds across the country using his simpler, more passionate rhetoric. Wilson, a former college professor, was unable to adapt to the public sphere and eventually not only lost his treaty but suffered a stroke.

Today, due to the televising of proceedings and other mediation, the U.S. Senate is much less isolated from the public sphere than it was in 1919. However, it has attempted to keep its negotiations regarding approval of nominations to the federal bench inside the Senate sphere. Starting with the nomination of Abe Fortas for Chief Justice of the Supreme Court in 1968, the argumentation surrounding some nominations has shifted into the public sphere. As the following study shows, this shift was the result of pressure from interest groups, coverage by the media, and/or at the behest of senators and the president.

Since 1968, more and more nominations to the Supreme Court have entered the public sphere to the point where lower court nominations and the Senate's filibuster rule have also engaged the public sphere. After reviewing the controversial nominations between 1968 and the present, this study assesses the impact as well as its impact on argumentation in public sphere over such nominations. The study relies on Jurgen Habermas' theory of the public sphere in general and his theory proceduralist law specifically to guide this assessment. [1] Habermas argues that “the vacant places of the economic man or welfare-client are occupied by a public of citizens who participate in political communication in order to articulate their wants and needs, to give voice to their violated interests, and, above all, to clarify and settle the contested standards and criteria.” [2] Habermas attempts to construct “communicative rationality” based on agreement among the rational in society performing in optimum speaking situations. [3] In such situations, argumentation becomes “a court of appeal that makes it possible to continue communicative action with other means when disagreement can no longer be headed off by everyday routines and yet is not to be settled by the direct or strategic use of force.” [4] The model requires speakers who have at their disposal “basic qualifications of speech and symbolic interaction.” [5] Habermas maintains that loyalty to the constitution must transcend cultural and ideological differences if consensus is to be achieved. [6] Thus, if argumentation in the public sphere places more value on interests other than the constitution, it can lead to fragmentation.

This study attempts to demonstrate that the Senate sphere and the public sphere meet Habermas's paradigm in different ways and also spill outside of it. The argumentation in the Senate sphere tends to focus on qualifications, constitutional interpretations, and definitions of impropriety. However, because senators play to their constituencies, they often make statements that will gain them access to the media. The more dramatic and controversial the argument, the more likely it is to be covered by the media. Public argumentation tends to focus on the nominees' gender, race, religion, political leanings, and perceived social agenda and by the 1980s is poll driven. Because the latter touches on more emotional interests, it is possible the rhetoric employed would fall outside of Habermas's ideal. The study also reveals that public relations consultants are much more likely to be used in cases where the public sphere is engaged. They too seek access to the media. While proponents of direct democracy and democratic renewal welcome such a shift, others concerned about the selection of qualified justices see the public involvement in and media coverage of the judicial process as troublesome.

Requiring the Advice and Consent of the Senate

Article 2, section 2 of the United States Constitution reads: “[The President] by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” This section was the result of intense negotiation during the drafting of the U.S. Constitution and has remained controversial throughout U.S. history. [7] For example, in 1822 former President Thomas Jefferson called for term limits on justices because he was frustrated with how the Federalist judges had dominated the court system. [8] The Supreme Court has recognized this problem in its own decisions. For example, in Edmunds v. U.S. in 1997, the Court recognized that “the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than” the Senate; however, the Senate's participation “serves both to curb Executive abuses of the appointment power, and ‘to promote a judicious choice of [persons] for filling the offices of the union.'” [9]

Section 2 of the Constitution does not require a super-majority in order for a justice to be approved. However, the constitutions of such countries as Spain, Portugal and Germany do require super-majority status, which has led to more consensus on nominations than is evident in the United States. [10] Others following the European example include such diverse nations as Bulgaria, Korea, and Mongolia. Also, in these European countries, judges are limited to single terms, usually twelve years. In Italy one-third of the fifteen justices of the Constitutional Court are selected by the President; one-third are elected by Parliament; and one-third are elected by the Ordinary and Administrative Supreme Courts. In England the House of Lords, which was a model for the U.S. Senate in some ways, is the highest appeals court in the land; no appointment to a separate court is necessary. In Japan, there is a 15 member Supreme Court that breaks into three five member petty courts; the Chief Justice is selected by the Emperor in consultation with the cabinet, which appoints the other justices. The cabinet is formed by the ruling party; thus, the minority in Japan cannot block appointments. The U.S. Senate, however, has created its own rule that prevents the closing of debate on matters before it until 60 or more of its 100 member vote for cloture. Thus, a majority of less than 60 can be stifled by a minority which continues to debate, a tactic known as the “filibuster.”

Today, even the nominations of judges to lower federal benches and the “filibuster” have often been thrust into the public sphere. This shift in the nomination process in the United States has broad implications for American politics and for other nations if their public spheres are forced to engage more directly in the selection of judges. Thus, implications for public argumentation will be explored in the conclusion of this study.

The Fortas Crisis

Lyndon Johnson moved Arthur Goldberg, whom John Kennedy had appointed to the Supreme Court, to the United Nations upon the death of Adlai Stevenson in the summer of 1965, and then appointed his friend Abe Fortas to the Court as an associate justice. [11] A memo prepared by Nicholas Katzenbach in July of 1965, demonstrates how conscious the administration was of various factors that go into the selection process. Fortas was selected not only because he was close to Johnson but because he was a Democrat, a Jew in the tradition of Brandeis and Frankfurter, between 50 and 60, and a judicial liberal. [12] Fortas was approved by acclamation. [13]

On June 13, 1967 in a White House Rose Garden ceremony, Johnson took the bold step of nominating the first African-American to the Court. Thurgood Marshall had argued the Brown v. Board of Education case of 1954, which resulted in a unanimous ruling ending school segregation. The nomination led to a nasty debate in the Senate. [14] Southern senators were particularly vitriolic in their attacks. They hoped to delay Marshall's appointment, as they had when he was appointed to the Second Circuit Court of Appeals in the Kennedy administration. [15] However, as Trevor Parry-Giles makes clear, this debate rarely aroused the public. [16] The controversy was contained “in the Senate,” “on the floor of the Senate,” and to “floor debate” between “members of the House and Senate.” [17] In the end, Marshall's nomination was approved 69 to 11, with 20 senators not voting. Marshall then began a 24 year tenure on Court.

At the same time, Fortas counseled Johnson on various matters behind the scenes. In 1968, a bitterly contentious election year because of the Vietnam war, Johnson had the opportunity to appoint Fortas Chief Justice when the 77 year old Earl Warren offered his resignation contingent upon being replaced by a Senate approved nominee. The nomination immediately fell into contention. Republicans were furious that Warren, the former Republican governor of California, did not wait until after the election. Believing that a Republican would win the White House, many claimed they would filibuster any nomination before the next president was selected. In his acceptance of the nomination in the summer of 1968, Nixon signaled that if elected, he would appoint more conservative justices than Johnson had: “Tonight it's time for some honest talk about the problem of order in the United States. . . . [L]et us recognize that some of our courts in their decisions have gone too far in weakening the peace forces.” [18] Hearings revealed that while Fortas had done nothing illegal, he had received $20,000 a year in consulting fees from the Wolfson Family Foundation and had accepted other gratuities. At that time, a Supreme Court justice made only $40,000 a year. The hearings also revealed that Fortas continued to counsel President Johnson. Senator Strom Thurmond led a filibuster on October 2, 1968 that forced the withdrawal of Fortas for Chief Justice. The filibuster was also directed at Homer Thornberry, a Johnson protege, whom he had nominated for associate justice. The Fortas controversy spilled into the presidential campaign of 1968 when Nixon linked Fortas to liberal activists on the court that had supported disallowing the use of tainted evidence in criminal trials.

Haynsworth and Carswell

In the following year, Richard Nixon's nomination of Warren Burger to replace Earl Warren went well, and may have lulled the President into a false sense of security, particularly when dealing with his own party. Fortas resigned his associate judgeship during Burger's confirmation process, giving Nixon another vacancy. Nixon's nominee for the open associate justice was Clement Haynsworth of South Carolina, who sat on the Fourth Circuit Court of Appeals. A Democrat, Haynsworth had supported Republican presidential candidates since 1964. While Haynsworth had been opposed by civil rights and labor groups in the past, Nixon believed Haynsworth would again prevail and win Nixon more support in the South, a region he divided with George Wallace in the election of 1968. Nixon had carried Haynsworth's state along with Tennessee, Virginia, Florida, and North Carolina but he lost the rest of the “deep South.” At the behest of Kevin Phillips, a Republican strategist, and Harry Dent, the Republican State Chairman from South Carolina, Nixon sought to build a new Republican majority that would include the states of the deep South carried by Barry Goldwater in 1964 and George Wallace in 1968.

On August 18, 1969, after a thorough investigation led by Attorney General John Mitchell, Nixon nominated Haynsworth. He ran into opposition almost immediately from liberal groups, who pressured the Senate. While Haynsworth's overall record indicated support for the civil rights of minorities and a flexible reading of the Constitution, in at least six decision, three of which were overturned by the Supreme Court, he had ruled against minority rights petitions. His labor record was similar. Thus, while civil rights groups opposed Haynsworth, he did not generate enthusiasm among conservative senators who favored strict construction on the Supreme Court. In reaction, the White House Congressional Liaison Office, began a practice that continues to this day, the creation of ad hoc units to deal with Supreme Court nominees.

While Haynsworth said nothing to justify claims that he was a latent segregationist, he did have conflicts of interest that, in the context of the Fortas crisis, would prove fatal to the nomination. [19] Due to the death of Republican leader Everett Dirksen, Haynsworth's hearing before the Judiciary Committee was postponed until September of 1969. Thus, the opposition forces, which were led by Senator Birch Bayh, had time to organize a media campaign that would take the debate into the public sphere. It became clear to Bryce Harlow, head of congressional liaison, and Attorney General Mitchell that they needed to balance Republican defectors with southern Democratic supporters of the nomination. On October 9^th under pressure from the White House, the Judiciary Committee approved the nomination of Haynsworth by a vote of 10 to 7.

Up until the committee vote, the administration had kept a low profile on the nomination. Only Assistant Attorney General William Rehnquist, who was coaching Haynsworth for his hearings, spoke out in favor of the nomination. [20] Rehnquist then complained to Nixon that not enough was being done by his congressional liaison staff and that Mitchell had not provided the President with a proper assessment of the nominee. [21]

Soon after the Judiciary Committee vote, the new Republican Minority Leader, Bob Griffin, told Harlow that the nomination was doomed. When Harlow recommended to Nixon that he withdraw the nomination, [22] the President demanded that a task force be put together to save it. He believed defecting Republicans could be brought back into line. He told Harlow to activate southern and National Rifle Association support. Thus, Nixon was rallying groups in the public sphere to counter those activated by Senator Bayh. Nixon's strategy marks a decisive shift in the politics of Supreme Court nominations.

As the battle escalated, Counselor to the President Clark Mollenhoff composed talking points in defense of Haynsworth that were sent to conservative interest groups. In a press conference in his office, Nixon claimed that Haynsworth was a victim of “character assassination,” and compared this fight to the one over the nomination of Louis Brandeis, a liberal Jew who was confirmed on a 47 to 22 vote with 27 abstentions. [23] Then in a major shift from the past, the White House, seeking a political advantage, sent the news media a defense of Haynsworth, targeting newspapers in states of swing vote senators. [24] The public was engaged. Patrick Buchanan, then the compiler of the daily news briefings for the President, and Lyn Nofziger were called into the task force; they quickly reinforced the decision to take the fight into the public arena, a step that was offensive to Democrats and Republicans in the Senate. Harry Dent, who had moved into the Political Affairs Office, activated state Republican chairs and contributors across the country. Nixon appointees were urged to support the nomination in the media. Nixon was personally involved in much of this effort. [25] He instructed Herb Klein to keep pressure on the media. Klein went so far as to appear on The Tonight Show with Johnny Carson perhaps the most popular venue in the public sphere at the time. Like other spokespersons, he pointed out that 16 former ABA presidents and the Trial Lawyers Association had endorsed Haynsworth.

Senate decorum was soon frayed. Southern Democratic senators supporting Haynsworth resented making the fight a public, partisan one. Republican senators resented the strong arm tactics of the president's staff, including telephoning wealthy Republican contributors and urging them to lobby their senators. Republican senators John Williams, Hugh Scott, William Saxbe, Charles Percy, Jack Miller, and Bob Griffin would eventually vote against Haynsworth's nomination in part because of the tactics of the White House, and in part, because they had brought Fortas down on conflict of interest charges and didn't want to appear to be hypocritical. They felt obligated to apply the same standard to Haynsworth.

Haynsworth lost despite the support of 18 Democrats because 16 Republicans voted against him. However, Nixon had gained southern sympathy. His next step was to punish the defectors and to solidify southern support. He instructed H.R. Haldeman to “destroy” the disloyal senators. [26] As for the South, on January 19, 1970, Nixon nominated Judge G. Harrold Carswell of the Fifth Circuit Court of Appeals in Florida. He also created the Office of Public Liaison and put Charles Colson in charge. In this way, the White House clearly signaled that it would appeal to the public sphere to support its nominee, who had the blessings of Attorney General Mitchell, Warren Burger, and Secretary of State William Rogers. [27] A new cycle of media wars and public engagement began with Nixon unaware of past statements by Carswell that would further engage the public arena.

The ad hoc group in charge of the Carswell nomination met each morning at eight, [28] where various tasks were assigned. Clark MacGregor ran congressional relations with Bill Timmons; Dick Moore and Bill Safire ran the press operation; Colson was to generate public support. Again Nixon was intimately involved in the nomination campaign, using his power of patronage and presidential prestige to try to persuade senators. [29]

Carswell owned no stocks or bonds; he was financially clean. However, the opposition found a quotation from 1948 in which, when running for public office in Georgia, Carswell had said, “Segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed and I shall always so act.” [30] Carswell immediately renounced the statement as a youthful indiscretion. The opposition added the label of “mediocre” to Carswell list of sins, which was soon confirmed when Senator Roman Hruska (R-Nebraska) claimed that the mediocre had a right to be represented on the Court. The nomination was defeated 51 to 45 on April 8, 1970. Nixon wrote in his memoirs, “I was determined that [the opposition] would at least pay a political price for it in the South.” [31] Nixon claimed in a press conference that Carswell was defeated because he came from the South. Nixon then nominated moderate Republican Harry A. Blackmun of Minnesota, who was unanimously confirmed by the Senate on May 12, 1970, and would later pen the majority decision in Roe v. Wade. Nixon entered into the ensuing congressional election campaign armed with a wedge issue: crime, the reduction of which he connected to strict constructionist judges. He also campaigned across the South seeking converts to the Republican party.

It is important to note that while the Haynsworth and Carswell nomination had been thrust into the public arena, neither was criticized for their current ideology or their methods of constitutional interpretation. While Nixon tried to put a political face on the attacks, they consisted of either the appearance of impropriety or potential past racism. The notion of ideological assessment for the public debate did not emerge until the 1980s.

Nixon's Later Appointments

In September of 1971, Justices Hugo Black and John Harlan resigned. Black, formerly of Alabama, had been a leader on civil liberties and a textualist. Harlan was one of the most conservative judges on the Court. He had regularly opposed the Warren agenda. Thus, Nixon would have the opportunity of a life time; he could now appoint a third and fourth justice to the Court, remaking it in his image.

His first choice was attorney Lewis Powell of Virginia, who was easily confirmed, the process being contained between the Senate and the White House. His second choice was William Rehnquist, who proved more controversial. Rehnquist had written a memo in 1952 when he was clerking for Justice Jackson; the memo defended the “separate but equal” decision in Plessy v. Ferguson. Under questioning Rehnquist claimed he had written the memo at the behest of Jackson to present one side of the issue for a debate among Jackson's staff. Other witnesses disputed Rehnquist's version of the context of his memo. However, the charges against Rehnquist failed to ignite public controversy and he was confirmed 68 to 26. Thus, it was the public battles over Haynsworth and Carswell that haunted the selection process for the future. [32] The Nomination of Robert Bork

President Reagan was successful in getting his nominees appointed to the federal courts because he had a Senate majority when he came into office and remained popular with the public until publicity surrounding the Iran-Contra affair damaged his reputation late in his second term. Official records show that he appointed about 50 judges a year during his two terms leaving an indelible mark on the federal judiciary. [33] One reason for this success was the fact that the Justice Department was given more authority in the Office of Legal Policy with regard to the selection of nominees. The Office was ideologically driven by presidential counselor and eventual Attorney General Edwin Meese III, who was a firm believer in the precept of original intent. [34] Before Meese came to full power, however, the Justice Department reported to William French Smith, who believed it was time a woman was appointed to the Court. The selection of Sandra Day O'Connor proved felicitous. She was easily approved even though her ABA rating was only “qualified.” When it came to selecting Supreme Court justices under Meese's direction, the going was more difficult. Meese had taken his notion of “original intent” public and in the process had engaged members of the liberal wing of the Supreme Court to debate him.

Speaking before the American Bar Association in Washington, D.C. on July 9, 1985, Meese said:

The intended role of the judiciary generally and the Supreme Court in particular was to serve as the ‘bulwarks of a limited constitution.' . . . As the ‘faithful guardians of the Constitution,' judges were expected to resist any political effort to depart from the literal provisions of the Constitution. The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution. [35] Then Meese zeroed in on his target: “Nowhere else,” he said, “has the principle of federalism been dealt so politically violent and constitutionally suspect a blow. . . . [A] jurisprudence of original intention . . . would produce defensible principles of government that would not be tainted by ideological predilection.” [36] He called original intent the “only reliable guide for judgment” and claimed that various rulings hampered state law enforcement, particularly Miranda v. Arizona.

On October 12, 1985 at Georgetown University Law School, Justice William Brennan, in a very unusual step, argued that Meese's position would undercut the living and evolving Constitution and re-establish states rights' to a level of influence that preceded the Civil Rights movement. Brennan argued that original intention was undiscoverable:

But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. [37]

On October 23^rd in Chicago before a Federal Bar Luncheon, Justice John Paul Stevens claimed that Meese's argument was incomplete because it overlooked the importance of Civil War amendments to the Constitution. He also claimed that Meese was doing the bidding of Justice Rehnquist, who was often a target of Stevens's rhetoric. [38]

This rare public exchange educated the news media, but did not engage the public. However, it was a prelude to the battle that would follow over Meese's recommendations to the President regarding appointments to the federal bench. Meese put Charles J. Cooper in charge of the Office of Legal Counsel and consulted with William Bradford Reynolds of the Justice Department when appointments opened up. Reynolds had been in the Justice Department in the Nixon administration where he worked closely with Solicitor General Robert Bork. Reynolds had led the fight to roll back affirmative action programs. [39] In March of 1984, Reynolds had met with “An Organization of Black Republicans.” A few days after that meeting, Elaine Jenkins, their chair, wrote Reynolds a revealing letter. It read in part:

Some [of us] do not think that we can turn around the exceedingly negative way in which you or your office is viewed. Some of us think that if there is a very conscious effort on your part to understand the concerns of black Americans we might help to turn the views at least away from a hue and cry to replace you. . . . In addition, some of the observations about the Justice Department include: 1) lack of black professionals appointed to the agency (attorneys) or consultants. 2) No black assistant to you who has a Civil Rights background or expertise. We will be interested in your views on how best to correct these voids. [40]

Denied a promotion by the Senate, Reynolds continued to pursue his own course. For example, he intervened in four employment discrimination cases seeking to alter consent degrees that required quotas. In 1985, he suggested what the ideal Supreme Court justice would look like. This internal memo decried judicial activism and endorsed federalism, meaning state's rights. The memo called for “commitment to strict principles of ‘nondiscrimination,'” an end to affirmative action and to racial prejudice. [41]

In 1986, when Chief Justice Burger retired to coordinate the celebration of the bicentennial of the Constitution, Reagan announced that he would nominate Rehnquist for Chief Justice and Antonin Scalia from the D.C. Circuit Court of Appeals to take Rehnquist's associate seat. Scalia was not well known, nor well published. Scalia's affable and humorous appearance before the Judiciary Committee carried the day. He won appointment unanimously on the same day that Rehnquist was approved by a more divided Senate.

Scalia was a textualist, who some suspected would be in favor of reversing Roe v. Wade, a move that would also be favored by an originalist like Rehnquist. Thus, when Reagan nominated Robert Bork on July 1, 1987 to replace the retiring Powell, a wave of lobbying overwhelmed the Capitol. As acting attorney general, Bork had fired Watergate prosecutor Archibald Cox when no one else would do it. As a Yale professor, he had defended strict constructionism and attacked judicial activism. As a member of the D.C. Circuit Court of Appeals, he had put his philosophy into his rulings. The ABA divided on the Bork nomination, with the majority declaring him “well qualified,” and the minority claiming he was “not qualified.” In contrast, in the cases of Rehnquist and Scalia, the “well qualified” designation had been unanimous. The ABA majority report claimed that Bork's rulings had been “balanced” and “fair.” [42] Bork's essays and books, however, revealed that he did not believe the Constitution should be interpreted liberally. His 1963 article in New Republic and his lectures that were published in the Indiana Law Journal drew the most attention. In the former, he implied that the 1964 Civil Rights Act violated the rights of white owners; in the latter, he made clear that only explicit language in the Constitution gives Congress power to act. Furthermore, he often ignored legislative intent to give legislation a literal reading, which worked against the interpretations put in place by the Warren Court in general and Roe v. Wade in particular.

Since Bork was not tainted by any financial or other kinds of scandals, he would have to be attacked on ideological grounds if his nomination was to be stopped. [43] There were many reasons to believe that the Bork nomination would be contained in the Senate's sphere. The Democrats had regained control of the Senate. In the wake of the Iran-Contra scandal, Howard Baker, a moderate, had become Reagan's chief of staff. With Reagan's popularity was slipping, Baker decided that Reagan should stay in the background during this nomination process. [44] However, Baker was not the only person who had Reagan's ear. The first time the nomination entered the public sphere in any significant way came when Reagan included it as the third item in a speech to the nation in August.

Reagan was responding to the fact that Senators Edward Kennedy and Joseph Biden had gone public on the nomination. [45] In an appearance on Face the Nation, Biden had warned that if the president nominated someone like Bork, the Senate would resist because Bork had an unacceptable “predisposition” on all major issues. [46] The day after the nomination on the floor of the Senate, Kennedy had played to the media by proclaiming that “Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution.” [47] A week after the nomination, Biden claimed that the public needed to become much more active in this struggle because the administration was moving the Supreme Court back in time to the age of strict constructionism and conservative judicial activism. Kennedy and Biden had made clear that an ideological litmus test would be applied to Bork, not a financial one, not a criminal one, nor one regarding his competence, and that these issues would be taken public. This combination of argumentative moves by the opposition was unique in the annals of the appointment process.

By the time Bork's nomination became official, a coalition of civil libertarian groups had coalesced to fight him. It was led by Ralph Neas of the Leadership Conference on Civil Rights, [48] and included Kate Michelman of the National Abortion Rights Action League, Estelle Rogers of the Federation of Women Lawyers, and many more. Michelman's press release claimed, “We're going to wage an all-out frontal assault like you've never seen before on this nomination.” [49] Her rhetoric invited a conservative response. Columnist George Will, for example, launched an attack on Senator Biden “because groups were jerking his leash.” [50] When Biden continued to assure civil rights groups that he would oppose the Bork nomination, even the Washington Post found fault with him: “While claiming that Judge Bork will have a full and fair hearing, Sen. Joseph Biden this week pledged to civil rights groups that he will lead the opposition to the confirmation. As the Queen of Hearts said to Alice, ‘sentence first – verdict afterwards.'” [51]

To begin what would be 12 days of hearings, former President Ford, Senators Dole and Danforth, and Congressman Hamilton Fish introduced Bork to the Senate Committee, while his family sat behind him. In his opening statement as a member of the committee, Senator Alan Simpson anticipated the “high drama” of the process. [52] However, in his opening statement sought to avoid controversy by dodging some issues: “I cannot, of course, commit myself as to how I might vote on any particular case and I know you would not wish me to do that.” [53] Bork gave testimony or answered questions on five days in which he retracted several of his previous statements, rationalized others, and gave rather boring discourses on case law. Biden pointed out that Bork's scholarship indicated that he would overturn Griswold v. Connecticut, a 1965 ruling striking down a state's prohibition on the use of contraceptives, [54] Skinner v. Oklahoma, a 1942 ruling that stopped involuntary sterilization of criminals, Shelly v. Kraemer, a 1948 ruling forbidding state courts from enforcing racially restrictive covenants, and the cases on one-person, one-vote. Bork responded that his opinions of 1971 were not his opinions of 1987. When Senator Patrick Leahy asked Bork just how far he had moved from his 1971 article, Bork's answer seemed disingenuous: “About to where the Supreme Court currently is.” [55] Under further questioning from Leahy, Bork reversed his previous opposition to Brandenburg v. Ohio, a 1969 ruling protecting hate speech unless it calls for immediate and specific action.

Humorlessly, he engaged Senator Arlen Specter in a long philosophical debate on the Constitution. He claimed to have changed his mind about Hess v. Indiana, another free speech case. He said that he would not overturn Roe v. Wade and that commercial and broadcast speech probably deserved more First Amendment protection that he had previously thought. However, he took a dismissive tone to the Ninth Amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Moderate Republican Senators were angered by his attitude on this point. [56] They also felt uneasy with the number of times Bork had claimed to have changed his mind on landmark cases. They suspected what Senator Leahy would claim was a “confirmation conversion.” [57]

In the hearing room and behind the scenes, administration operatives provided conservative Republican senators with material to refute the attacks of the Democrats and to help Bork re-establish his credibility. Nonetheless, Bork often failed to take advantage of soft ball questions from his supporters. Bork left Senator Orin Hatch stranded on the issue of literacy tests. [58] When Senator Gordon Humphrey encouraged Bork to comment on rulings related to crime, he dodged the question with a jaw dropping response, “I'm not an expert on criminal law.” [59]

Witnesses on both sides came before the committee; many of these drew national media attention. Congresswoman Barbara Jordan and Atlanta's mayor Andrew Young attacked Bork's opposition to such “one-man-one” vote decisions as Baker v. Carr. Judge Shirley Hufstedler and constitutional expert Philip Kurland claimed Bork would undercut un-enumerated rights. Chief Justice Berger defended Bork's interpretation of the Ninth Amendment, though with some hesitation. Carla Hills from the Ford Administration and Griffin Bell, Carter's Attorney General, were more helpful to Bork. Nonetheless the committee voted five to nine against the nomination.

No single nomination had ever taken up so much time. Not even Clarence Thomas' two sets of hearings would last longer. Bork's wife, Mary Ellen, met with Republican senators the day after the committee vote to complain about how her husband had been treated. At a meeting with White House Communications Director Tommy Griscom, Bork demanded that President Reagan give a speech to the nation backing a full Senate vote on the nomination. Griscom denied the request. [60] Three weeks later after a meeting with Reagan, Bork walked to the White House press room and challenged the Senate to hold a vote on his nomination. He claimed that his record has been distorted and he wanted the full Senate on record.

At the same time, the White House gained an advantage when Senator Joseph Biden, the Chair of the Judiciary Committee, was eliminated from the on-going Democratic presidential nomination process because of charges of plagiarism not only in the primary campaign but in law school. President Reagan decided to increase his activity on behalf of Bork. Eventually, he would make more than 30 public statements in support – some on national television to the viewing public. [61] This was a major turning point in the nomination process because from that moment on, presidents would make public statements supporting their nominees, a practice that was quite rare prior to Reagan. [62]

Courting the public, Bork continued to engage the press to his advantage. Tom Korologos, a Washington lobbyist with influence in Republican circles, arranged interviews and coached his client on tough questions. [63] The White House Office of Communications set up fifteen radio interviews a week to support Bork. [64] In the South many radio stations played Jesse Jackson's condemnation of Bork. [65] Griscom coordinated the op/ed efforts of administration officials resulting in at least 20 being published. The conservative Washington Legal Foundation, founded as a counter-weight to the liberal ABA, rallied support as did Secretary of Education William Bennett.

Expanding the public arena, the women's movement mobilized their largest letter writing and phone call campaign ever. They led a “Media Task Force” dedicated to stopping the nomination. For the first time, advertisements against a Supreme Court nominee appeared on television; one was narrated by Gregory Peck and paid for by Norman Lear's People for the American Way. Peck read, “Robert Bork could have the last word on your rights as citizens, but the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Bork wins a seat on the Supreme Court, it will be for life – his life and yours.” [66] Ralph Nader's Public Citizen Litigation Group released a detailed study of Bork's 56 most controversial rulings, ignoring over 400 others that were uncontroversial and generally unanimous. The White House counted almost 300 special interest groups opposed Bork. These groups were successful in getting the news media to turn negative on Bork's nomination in the crucial July 1 to October 9 period. [67] The Washington Post and the New York Times recommended against Bork's nomination. [68]

The public and media pressure forced the full Senate to take up the nomination. After three days of dramatic debate, six moderate Republicans voted against Bork. [69] The nomination was defeated 58 to 42 on October 23, 1987. The White House public relations machine and congressional liaison office could not overcome Bork's rhetorical inadequacies, his change of positions on important cases, his record on political issues, and the major media opinion leaders turning against him. Nonetheless, Bork's nomination marked a major sea change in the confirmation process. As Yalof has written, “Robert Bork's ill-fated Supreme Court bid in 1987 fundamentally changed the nature of public discourse that would surround all future Supreme Court appointments. By their persistent attacks on Bork's academic writing, Democratic senators establish a precedent for challenging future nominees on strictly ideological grounds.” [70] And one might add, by doing so in the public arena.

Matters went from bad to worse for the administration when Reagan nominated Douglas Ginsburg, who confessed to smoking marijuana with his law students at Harvard. His nomination was withdrawn on November 11, 1987. Reagan then turned to Anthony Kennedy, who was approved unanimously after an easy hearing.

The Thomas Nomination

If anyone believed that Bork's adventure in the public sphere was a fluke, they were disabused of that notion when Clarence Thomas was nominated to the Supreme Court. There would be significant differences between the two events. Aside from the fact that Thomas was approved, the Thomas backers used narrative to great effect, and Thomas himself broke through media screeners to appeal to the public directly.

To replace Thurgood Marshall, President George Bush nominated Thomas on July 1, 1991. Born in the segregated South, and raised in Pin Point, Georgia, Thomas was a product of poverty, Catholic boarding schools, hard work, and affirmative action. He eventually entered and left two seminaries, the victim of racism. After graduating from Holy Cross College with honors, he attended Yale Law School. From there he went to work for moderate Republican Senator John Danforth and changed his voter registration to Republican.

Thomas's early life provided a potent narrative that President Bush and his advisors used to influence the nomination process by taking the story to the public. [71] In fact, soon after the announcement of the nomination, Bush touted Thomas's accomplishments and biography in a series of venues. On July 8, Bush claimed that Thomas offered a “stirring testament to what people can do.” [72] On August 6, the president said he was “deeply moved” by Thomas' life story. [73] The president continued his unprecedented, pre-hearings campaign of persuasion in mid-August by claiming that “his personal story cannot help but move people.” [74] The same strategy was used in a teleconference with the National Governors Association on August 18, in a speech to the National Association of Towns and Townships and a speech to the nation, both on September 6, and at a fund-raising dinner in Philadelphia on September 12, 1991. No president prior to Bush had made so many statements in support of a nominee before his or her hearings than Bush did for Thomas. Using the Justice Department's strategy, Bush clearly sought to replace questions about ideology with the narrative of Thomas's life, which was much more accessible to the public than theoretical considerations. The press was quick to take up the same theme. [75] Thus, before the charges of sexual harassment were made, Thomas was in the public eye. The charges would serve to widen the public forum. But first came the initial round of hearings.

In 1981 and 1982, Thomas served as Assistant Secretary for Civil Rights in the Department of Education. Reagan then chose Thomas to head the Equal Employment Opportunity Commission (EEOC), which supported most affirmative action programs. While the Civil Rights Commission was critical of the Reagan administration in many areas, it singled Thomas out for praise. In fact, Thomas' EEOC was critical of the Reagan Justice Department, deciding not to file amicus briefs opposing it only after major pressure from the White House. The EEOC in 1983 resolved over seventy-four thousand complaints, compared with less than fifty-eight thousand in 1980 under Carter. Only after 1984 did Thomas openly begin to question the hiring regulations of the EEOC in particular and the use of quotas for reparation or past abuses in general. [76]

Thomas's 16 months of noncontroversial service on the D.C. Circuit Court of Appeals, his conversion on the issue of affirmative action and his support of natural rights made him attractive to the Bush administration, particularly to White House Counsel C. Boyden Gray, who helped usher the nominee through the process. The media generally reported favorably on Thomas; however, a red flag went up when the ABA gave Thomas only a “qualified” designation, the same designation applied to O'Connor and Carswell.

During his first set of hearings, Thomas refused to speculate on how he might vote on various cases. In his opening statement, he said, “A judge must not bring to his job, to the court, the baggage of preconceived notions, of ideology, and certainly not an agenda.” [77] While his performance was not brilliant, Thomas dodged enough questions to pass muster. For example, when confronted with inconsistencies in his record, Thomas explained that it was one thing to be part of an administration and quite another to be a judge. He asked the members of the Judiciary Committee to assess him in his role as a member of the D.C. Circuit Court of Appeals. Thomas also relied on his upbringing to defuse criticism. [78]

Thomas was followed by three days of testimony from those opposed or in favor of his nomination. Some revealed that, unlike what he said in his statement, Thomas had indicated his displeasure with the Roe v. Wade decision. On September 27^th, the Committee voted 7 to 7 on the nomination. President Bush immediately urged the public to contact their senators to support Thomas' nomination. [79] Bush also brought the Christian Coalition and the NRA on board. In response, the board of the NAACP voted against the nomination 49-1 and the National Bar Association and the National Council of Black Lawyers, both African-American groups, opposed the nomination. The battle was escalating.

Just as the Senate was about to vote on Thomas, National Public Radio broke a story: Anita Hill, an African-American former employee of Thomas at the Department of Education and a professor of law at the University of Oklahoma, claimed in testimony to the FBI that he had sexually harassed her. Due to a staff error, committee chair Biden had failed to provide the information to the other committee members.

A second round of hearings began on October 11, 1991 in which Thomas angrily denied the charges. Then Hill repeated her reluctant testimony to the FBI about intimate sexual innuendos. [80] That evening, Thomas's testimony in reply drew huge television ratings. [81] An electric moment came when viewers saw Thomas accuse the panel of conducting a “high-tech lynching of an uppity black man.” [82] Thomas's indignation and passionate delivery stood in marked contrast to his previous testimony. ABC's “Nightline” ran three programs on the hearings; ABC, NBC, and CBS provided live coverage of the second hearing.

Over the next 48 hours, Hill returned and new witnesses were called on the specific charge of sexual harassment. Republican senators accused Hill of lying or of being part of a conspiracy to stop the nomination. [83] Thomas returned one more time to protest how he was being treated; he refused to withdraw his name. [84] Throughout the two sets of hearings over eleven days, the committee heard from 50 different interest groups, most which opposed the nomination. After more media coverage and debate in the Senate, Thomas was confirmed on a vote of 52 to 48, the closest confirmation vote in the twentieth century. Thomas's nomination battle was won not only because of the rhetorical strategies of Bush and his Justice Department, but also because of Thomas's own ability to manipulate the media at a live hearing that was being watched by the public. [85]

Since Thomas's explosion, all Supreme Court nominations have been rather peaceful in part because they were not extremists, and they proved facile at dodging tough questions. Ninety-six senators approved of Clinton's nomination of Ruth Bader Ginsburg; only three voted against. Eighty-seven senators approved his nomination of Stephen Breyer; only nine voted against. After Thomas, presidents seem to have learned that low key nominations are better than high profile ones for the Supreme Court. They are leery of what potential nominees have written and said. They are cautious about financial dealings, past indiscretions, and the like. [86]

The Lower Federal Courts

However, once Republicans regained control of the Senate, they began to challenge lower federal court appointments on an ideological level. This was one of the reasons that Clinton had difficulty filling open slots on the federal bench. He was far less successful than either Reagan or the Bushes in getting his nominees to the lower federal benches approved in part because his administration began with failed nominations to cabinet posts that used up presidential capital and because he faced Republican majorities for some sessions of his presidency. [87] As of July, 2005, two-thirds of the162 active judges on the U.S. Court of Appeals were Republican appointees. The confirmation of John Roberts as the Chief Justice and the nomination of Harriet Miers to replace Justice O'Connor would replace existing Republican appointments. In fighting Clinton, the Republicans argued in some cases that leaving some slots open would not impede the judicial process. As we shall see, under George W. Bush, these same Republicans attacked Democrats for not allowing votes on the same kinds of appointments.

George W. Bush

By his third year in office and with the support of a Republican majority in the Senate, George W. Bush had reduced the vacancy rate on the federal bench to a thirteen-year low. He made 28 appointments in 2001, 72 in 2002, and 68 in 2003 by November first. [88] Only 39 seats on the federal courts were left to fill. One might think that an era of good feeling prevailed in the Congress and that public argument might be at a nadir.