Shifting Federal Court Appointments into the “Public” Sphere

Craig R. Smith, Communication Studies, California State University, Long Beach

Abstract

            In the United States, the negotiations over various nominations to the federal bench have generally been contained within the Senate's sphere of argumentation, which means they have been subjected to a super-majority requirement.  In contrast to the super-major requirements in such countries as Germany, Italy, Portugal and Spain, the U.S. Senate's filibuster rule is non-constitutional and requires that 60 percent of the Senate must approve of voting on the president's nomination before it can be brought to the floor.  This article is an inductive examination of  how some nominations and the filibuster itself became part of the larger public sphere.  The study reveals that argumentation contained in the Senate sphere tends to involve questions of constitutional interpretation, judicial qualifications, and/or legal and ethical improprieties.  However, argumentation that is addressed to the public sphere tends to be mediated and to focus on social issues  such as abortion and gun control.  It can also center on the gender, race, religion, party affiliation, or social agenda of the nominee.  In the modern era, the sporadic shifts to the public sphere began with the appearance of impropriety surrounding the nomination of Abe Fortas as Chief Justice of the Supreme Court in 1968 and continues with the resolution of the Democratic filibuster against certain federal nominees of President George W. Bush in 2005.  This study demonstrates the growing role of public relations operations in the White House and among interest groups in terms of their public arguments. 

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.

                        However, more than any preceding president, Bush pressured the Senate to approve his more controversial nominees, some of whom had only been approved in the Judiciary Committee by one vote.  Many of these were ethnically or gender charged appointments, not unlike Thomas's.  For example, African-American Janice Rogers Brown, an associate justice of the California Supreme Court, was nominated to the U.S. Court of Appeals for the District of Columbia.  Democrats pointed to excerpts from her speeches that reveal her to be a very strong critic of the federal government.  In a speech on September 16, 1999 she said, “Where government advances – and it advances relentlessly – freedom is imperiled, community impoverished, religion marginalized and civilization itself jeopardized. . . .  Government acts as a giant siphon, extracting wealth, creating privilege and power, and redistributing it.” [89]   She claimed in another speech that “big government was the opiate of the masses” and that the “New Deal inoculated the federal Constitution with a kind of underground collectivist mentality.” [90]  

                        On November 14 and 15, 2003 after 40 hours of acrimonious debate, the Republicans tried to force a vote on Judges Brown and Carolyn Kulh of California.  They failed, as they also did in the case of Allen Snyder, a clerk to Rehnquist.  During this period, Democrats claimed that Miguel A. Estrada, a White House lawyer, was too conservative and that Bush only nominated him to court the Hispanic vote.  The Democrats successfully filibustered his nomination and stopped the nominations of Henry Saad of Michigan, Priscilla R. Owen of the Texas Supreme Court, and Alabama Attorney General William H. Pryor, Jr., to whom Bush gave a recess appointment.  In the public sphere, the arguments focused on the use of the filibuster, not on the qualifications of the justices.       

                        The new public nature of these controversial appointments was most apparent in the case of U.S. District Judge Charles W. Pickering, a white Mississippian, whom Bush sought to place on the U.S. Court of Appeals.  Pickering was blocked on the floor of the Senate by the Democrats who mustered enough votes to sustain a filibuster and prevent a vote on the nomination.  That in itself was not unusual; Republicans had done the same thing with some Clinton appointments.  However, on October 30, 2003, just days before a close governor's race was to come to an end in Mississippi, the Republicans schedule yet another vote on Pickering in an effort to help their candidate in Mississippi.  Some Republicans hoped that the voters of Mississippi would punish the Democratic candidate because Democrats in the U.S. Senate were blocking the elevation of a Mississippi judge.  The Democratic candidate, sitting Governor Ronnie Musgrove, publicly pleaded with Democratic senators to allow an up or down vote on Pickering.  In a campaign speech in Ohio, the president joined the debate by pounding a podium and yelling, “every judicial nominee deserves a fair hearing and an up or down vote on the Senate floor!” [91]  

                        The Democrats refused to relent.  On the floor of the Senate, Edward Kennedy accused Pickering of being “hostile to plaintiffs bringing civil rights claims.” [92]   On October 31, 2003, with six votes to spare, Democratic senators again blocked the vote on the nomination of Pickering.  A few days later, Governor Musgrove was defeated in part because the voters of Mississippi resented what the Democrats had done in Washington.  Conservative Democratic Senator Zell Miller had predicted the outcome. [93]

                        The filibuster of the Pickering nomination was the fourth time in 2003 that one of the president's nominees had been blocked by a Democratic filibuster. [94] In July 2004, the nomination to federal appeals court of William G. Myers III, a lawyer for cattle and mining interests, was blocked after a bitter debate that included references to Bush's environmental policies, thereby expanding the debate from the candidate's qualifications to public political issues in a campaign year. [95]  

                        These controversies spilled into the public arena for many reasons.  The president  made them part of his campaign for re-election; the Republicans used them in off year elections.  Democrats, frustrated with what they believed were rightist appointments, decided to go public with their objections.  Part of the problem may be perceived arrogance on the part of the president and his Senate supporters.  The president has circumvented the Senate with recess appointments, as did his predecessor.  Senator Bill Frist, the majority leader, promised to do everything in his power to produce “up or down” votes on the filibustered nominees.  He violated a long standing unofficial practice of allowing a single senator to put a hold on a nomination to the lower Federal courts. [96]

                        Democrats felt compelled to respond to the White House charge that those who opposed these candidates were anti-Black, anti-Latino, or anti-feminist.   In the cases of Pryor and Estrada, some in the administration have accused their opponents of being anti-Catholic.  Robert Harris, a former president of the National Bar Association and a founder of the California Association of Black Lawyers, said, “I know this pattern well.  It was clearly visible as long ago as the appointment of Justice Clarence Thomas.” [97]   The pattern is to nominate a conservative justice who happens also to be a member of a minority group or a women thereby somewhat disarming opponents.

                        The fight over the blocked Bush appointments continued after his re-election victory in 2004.  With a larger margin in the Senate (55-44-1), Bush re-submitted the names of William Pryor, William G. Myers, III, Janice Rogers Brown, Priscilla R. Owen, Richard Griffin, Henry Saad, and 14 others in 2005.  The announcement re-ignited the controversy in the press. [98]   In April of 2005, when Majority Leader Frist announced that he intended to change the rules of the Senate to prevent the use of a filibuster for judicial nominations, the controversy again spilled into the public sphere.  Each side referred to this move as a “nuclear option” and claimed it would lead to the worst partisan warfare since the mid-1990s. [99] The Senate Minority Leader, Harry Reid of Nevada, defended the filibuster in a national radio broadcast as an historic tradition and of particular use when the Senate and the White House were held by the same party. [100]   By May of 2005, both sides launched one million dollar advertising campaigns over the court nominees.  Progress for the American Way led the Republican effort, which focused $350,000 on Christian radio stations, and $1.5 million mainly in six states represented by wavering Republican senators.  People for the American Way, led by Ralph Neas, headed the Democratic effort; he claimed that they would spend the same amount in the same television markets.  Both sides claimed to be responding to the ads of the other.  Neas's advertisements singled out the nominations of Priscilla Owen of Texas, and Janice Rogers Brown of California.

                        The conservative group claimed that the founders would have been appalled to see the filibuster applied to the “advise and consent” provision for judicial nominations.  On May 17, the President spoke at a Republican dinner and claimed that senators had “a duty to promptly consider each of these nominees. . . .  And then give them the up-or-down vote they deserve.” [101]   On May 18, 2005, Frist brought the names of Owen and Brown forward to force the issue, and even more headlines concerning the appointments were generated when the Senate reached a compromise over how to apply the filibuster rule to federal judicial appointments: it could be used only in “extraordinary circumstances,” which many took to mean that judicial philosophy would no longer be a valid test for confirmation.  Again the senate confirmation debate made the front page of many newspapers and was the lead item on the evening news. [102]

                        On May 24, the Senate voted 81 to 18 to bring the debate over Owen's nomination to an end; she was confirmed on May 25^th, four years after her first nomination to the federal bench.  Brown and Pryor were approved in early June.  At this writing, questions remained about the fate of William G. Myers and Henry W. Saad.  While the compromise appears to be a step back from the test that was first applied to Bork, it is based on trust and not binding.  It is a “gentlemen's agreement” that did not come undone with the nomination of John Roberts.  The President presented Roberts to the public in a media event at the White House on July 19^th, on the 20^th the President endorsed Roberts in a public speech.  The news media quickly noted that Roberts and his wife were Catholic, and that was a leader in th anti-abortion movement.  Conservative interest groups, such as Operation Rescue endorsed Roberts; liberal groups, such the National Organization of Women (NOW), labeled Roberts an extremist.  Before he was switched to the Rehnquist seat, his sex became an issue when outgoing Justice O'Connor said she regretted that she would not be replaced by a woman on the court.  Neas, president of People for the American Way, conducted a poll to determine on which issues Roberts was the most vulnerable. [103]   On August 8, 2005, the National Abortion Rights Alliance (NARAL) launched a $500,000  ad campaign that claimed “America can't afford a justice whose ideology leads him to excuse violence against other Americans.”  As a deputy in the U.S. Solicitor's Office, Roberts filed an amicus brief that argued  in Bray v.  Alexandria Women's Health Center (1991) that abortion foes had a right to protest in front of abortion clinics. [104]   However, through Senator Specter, the Senate sphere reigned in the public sphere, when the Senator strongly criticized the NARAL advertisement.  NARAL immediately withdrew the advertisement and from that point on, the Roberts nomination was mainly contained within the Senate sphere.

                                                During his testimony, Roberts played along with this tactic by making sure he did not reveal how he might vote on various issues that might come before the court.  He claimed respect for settled law, which some read to mean he would not vote to overturn Roe v. Wade. [105]   He claimed he was not an “originalist” but would read the Constitution in its current context.  Despite being opposed by Senate minority leader Reid, Roberts was endorsed by the ranking Democrat on the Judiciary Committee, Senator Patrick Leahy, which assured that the nomination would be approved. [106]

Conclusions

                                                Habermas seeks a public sphere that results in universal assent induced by practical rational argument.  He thus provides a standard against which we can measure the argumentation in the public and Senate spheres; but he does not provide a theory that explains what happens when the nomination process enters the public sphere.  That must be left to inductive studies like this one, previously cited research, and the writings of other investigators.  For example, Stephen Carter complains that public relations campaigns have become more important to nominations than qualifications. [107]   He also questions whether the public is qualified to sit in on the nomination process, and claims that placing the nomination in the public sphere results in “ridiculous” arguments. [108]   As long ago as 1992, legal scholars argued that “it is difficult to find anyone who is satisfied with the way Supreme Court justices are appointed today.” [109]   We do know that the televised debacle of Bork resulted in calls for the privatization of the hearings that were eventually implemented after the Thomas hearings. [110]

                                                Clearly, engaging the public sphere can lead to a media circus, but it also means that the public has more access to information about the nominees, thereby empowering them to make better arguments in terms of Habermas' paradigm.  From presidential news conferences to appearances on the Tonight show, mediation of the nomination process opens it to the public.   When the public sphere is engaged there are  many more venues available for the debaters involved in the controversy.  Furthermore, initial attacks on the nominee by one side, whether ideological or political, engender responses by the other side that escalate the debate and often attract the attention of the public.  These heated exchanges are often carried on the national news and cable programs to the public, who become further involved in the battle.  However, as anyone who has been a guest on so-called interview programs can tell you, interviewers seek drama through polarization.  They pit guests against one another in a way that is deleterious to the argumentative process.

                                                Such an arena is in stark contrast to what happened after the Thomas hearings.  The Senate sphere became more closed.  The Senate Judiciary Committee conducted questioning on private matters in closed executive session, locking the public out of the Ruth Bader Ginsburg and Stephen Breyer hearings.  Surprisingly, prior to his theory of procedural law, Habermas might be read to support the Senate's approach.  He questions the value of debate that is mediated: “The public sphere in the world of letters was replaced by the pseudo-public or sham-private world of culture consumption. . . .  The world fashioned by the mass media is a public sphere in appearance only.” [111]   The public sphere has been so invaded by the public media that sensible debate is marginalized and instead of becoming involved and empowered, the public has become passive consumers to whom special interests pander.  Thus, senators are not actually engaging in public sphere debate; they are entering the mediated sphere of publicity to advance their position and gain support in future elections.

                                                The shift to ideological concerns with Bork and sexual matters with Thomas have created a tendency to move nomination debates into the public sphere if they are at all controversial.  The result is a longer nomination process and a more public one.  Unless nominees, their backers, and their attackers understand how decisions are made in the public sphere, they are likely to fail to achieve their goals, particularly if they are naive about how the public arena operates.  Today, not only are Supreme Court nominees subject to this phenomenon but now so are lower court nominees.

                                                This study sought to determine the impact on argumentation when the debate over federal court nominees is taken into the public sphere.  First, arguments in the public sphere do not provide the kind of rational completeness Habermas seeks when he calls for public reflection on the implication of court decisions. [112]   These arguments tend to focus on social issues, the rules of the game, the gender, the race or religion of the nominee, which is in contrast to the focus on constitutional interpretation, qualifications, ethics, and alleged wrong doing of the nominee in the Senate sphere.  While the public is not engaged by explanations of the incorporation doctrine, or the precept of original intent, they are much more passionate about abortion, drug use, sexual misconduct and racism.  Thus, argumentation shifts from qualifications and constitutional theory in the Senate sphere to social and political issues in the public sphere, and, as such, is less likely to be “civil” in the sense that Habermas uses the word for his rational democracy. [113]

                                                Second, if nominations are delayed, opponents of the nominee have a much better chance of gathering evidence and arguments in opposition which they can use to generate public debate on the nominee.  Fortas and Bork were disadvantaged by delays that occurred in their nomination process allowing public opposition to coalesce.  However, because their nominations had a full debate in the public and Senate spheres, it is fair to assume that Habermas would endorse such delays to allow enough time in the nomination process for public argument.

                                                Third, once the public sphere is engaged, it can be used for political advantage in a way that the Senate sphere cannot.  President Johnson claimed that Fortas had been rejected on political grounds, which excited loyal Democrats; Nixon claimed that Fortas would be part of “soft on criminals” group, which excited loyal Republicans.  In Haynsworth's case, Nixon injected him into the congressional campaign, using Johnson's strategy when he claimed that Haynsworth was reject for political, regional, and ideological grounds.  President Nixon lost his nominations of Carswell and Haynsworth but succeeded in advancing his political agenda and winning over Southern voters.  Thus, Johnson and Nixon shifted the nomination process to the public sphere by including it in campaigns that focused on different issues than those that engaged the Senate.  If these campaign arguments were disingenuous, and they certainly appear to be, then they would violate Habermas's standards.

                                                 As a corollary, the public relations operation in the White House has expanded greatly in terms of its size and its involvement in federal court nominations.  There is a new emphasis on checking scholarly writing of nominees, as well as legal opinions; that move has provided a different kind of evidence for the arguments that are developed.  Some writings, as in the case of Bork, may be used to argue that the nominee is out of touch, ideologically unacceptable, or theoretically flawed.  Under Nixon, the public relations divisions began to do polling when a nomination got in trouble.  As we have seen, interest groups now do polling to determine the best way to attack or defend a nominee.  Thus, public sphere argumentation has become poll driven.

                                                Fourth, engaging the public sphere has promoted a tit-for-tat mentality that smacks of political revenge instead of civil debate. [114]   Republicans had to sacrifice Haynsworth because of what they had done to Fortas; Thomas was nominated in response to what happened to Bork.  The Democrats filibustered Bush's federal nominees because Republicans had filibustered Clinton nominees.  Such an atmosphere does not contribute to a refined, rational, and well argued nomination process that is needed for Habermas's consensual model. [115]   He is particularly concerned about the disregard for integrity in civic debate, a characteristic quite common when nomination enters the public sphere in America.

                                                In this regard, we should note that European nations have achieved consensus using a super-majority requirement.  Legal scholars in the United States have argued that a super-majority requirement should replace the filibuster to foster consensus on nominees.  Brent Wible argues, “A re-calibrated system in which a three-fifths or two thirds super-majority of senators is required to confirm judicial nominees would address the concerns that animated the Founders, ensuring political accountability in the executive and a check on presidential appointments in the Senate that is meaningful regardless of temporary electoral outcomes.” [116]   The Constitution contains only seven provisions that require super-majority approvals; however, some of those, such as treaty confirmations, were written into the Constitution when only one house of the Congress was required for approval.  Such is the case with federal judicial appointments.

                                                Another reform would be to follow the German model, which requires that its constitutional court's decision be a two-thirds majority.  This would eliminate five-to-four decisions, which tend to make a single justice more important on the American court.  Each of these structural reforms would reinforce Habermas's call for consensus.  However, we should note that two-thirds threshold might delay the kinds of reforms needed to overcome racism and other cultural problems in a society.

                                                Fifth, engaging the public sphere has led to an escalation in presidential involvement in the public debate over nominees.  Presidents have become advocates of their nominees to extent unheard of before the Bork nomination.  They present their nominees to the public and then endorse their nominees in public speeches.  They regularly engaged the media and interest groups to rally support for their candidates.

                                                Sixth, Thomas's nomination indicates that when the public sphere is engaged, argumentation can change in at least two ways other than those mentioned above.  First, narratives seem to capture the attention of the media and move the public.  Second, a nominee can break through media screens by making an effective, and usually passionate, rhetorical appeal.  Neither of these tactics is likely to move members of the Senate sphere.  And these tactics appear to be outside the realm of what Habermas recognizes as the normative sphere of rational argumentation.

                                                Seventh, the argumentative roles that senators play during the hearings often define how or why they engage the public.  Watson and Stookey have identified at least four roles that senators take on: evaluator, validator, partisan, and advocate. [117]   Senators will shift roles and even combine them depending on partisan and ideological variables.  An Orrin Hatch will try to validate the nomination of a Robert Bork, while at times playing his advocate.  However, that same senator might become an evaluator of a Ruth Bader Ginsburg.  The senator's adopted role shapes the argumentation the senator uses in public forums.  Senator Arlen Specter's prosecutorial role in his questioning of Anita Hill on live television nearly resulted in his defeat at the polls because Pennsylvania viewers were incensed at the aggressive nature of his questions. [118]  

                                                As Ronald Reagan once opined, the selection of nominees to the Supreme Court has become a partisan, and often ideological struggle. [119]   The president has at his disposal several loci of argumentation to win the day.  These include the White House Congressional Liaison Office and Communication Center, the Justice Department (particularly the Office of Legal Counsel), interest groups, and the party's national political apparatus.  All of these can act in concert through various ad hoc groups to pressure the Senate to confirm a nominee.  They also clash with opposing interest groups and the opposing party's apparatus.

                                                Because the number of players has grown and because of the media focus, the nomination process has become increasingly public.  Thus, when a nominee is chosen, the screening process is crucial not only because it can generate evidence and arguments in favor of the nominee but also because it can discover an Achilles' heel.  If the results of the screening are favorable, the White House liaison office then must decide how to use the arguments in favor of the nominee.  At first, such arguments are directed at members of the Senate Judiciary Committee, and then to the Senate itself.  However, should the nomination run into trouble, the appeals may be expanded beyond normative Senate argumentation and to the public.  The liaison office may also expand the involvement of the administration to the Justice Department and the political wing of the White House.

                                                The same pattern with some modification is true of the opposition.  Initially, those groups opposing the nomination, usually special interest groups, focus their attention and testimony on the senators on the Judiciary Committee.  If they are successful, they need not expand the scope of the controversy.  However, should they fail, they then expand the scope first to the Senate at large and then to the public having no where else to turn.

                                                The role the U.S. Supreme Court played in the selection of the president in 2000 increased the stakes in the nomination process because those who sit on the court were seen by many to have chosen the president.  For that reasons, nomination to the Supreme Court will further engaged the attention and scrutiny of the media and the public. [120]   Unless nominees are carefully screened, they are likely to face intensive media campaigns for and against them in a mediated public sphere.  Other nations in the throes of constitutional reform might well study how the public sphere has been engaged and mediated in the United States because of its nomination process. 

                                                                                                Endnotes