SCOTUS for law students: Remembering recent confirmation hearings

Supreme Court confirmation hearings in the Senate Judiciary Committee are not usually a place one looks for legacies. Yet a number of hearings have left their mark on the Supreme Court nomination process. Add the confirmation of Justice Brett Kavanaugh to that list.

This column will consider examples from the confirmation of the late Justice Antonin Scalia, the unsuccessful nomination of the late Judge Robert Bork, and the hearings for Justices Clarence Thomas and Ruth Bader Ginsburg and Chief Justice John Roberts, as well as Kavanaugh’s more recent experience. Each of these confirmations has produced one or more memorable moments or characterizations that have become part of the legacy of nominations and the justices themselves.

For decades every nominee has wrestled with where to draw the line on their willingness to discuss cases decided in the past by the Supreme Court. The general pattern is that nominees will not discuss cases of recent vintage or that are still controversial. Most nominees have had no problem extolling the virtues of Marbury v. Madison, the 1803 decision written by Chief Justice John Marshall that forever elevated the role of the Supreme Court.

Not so Scalia. Nominated by President Ronald Reagan in 1986, he was selected to fill the seat of Justice William Rehnquist, who was simultaneously nominated to be chief justice to replace the retiring Warren Burger. Alone among nominees of the last several decades, Scalia famously said he could not answer questions even about Marbury v. Madison.

“Marbury v. Madison is one of the pillars of the Constitution,” Scalia said. “To the extent that you think a nominee would be so foolish or so extreme as to kick over one of the pillars of the Constitution, I suppose you shouldn’t confirm him. But I don’t think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison.”

The following year, Reagan nominated Robert Bork, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed retiring Justice Lewis Powell. In one of the most memorable moments of his testimony, Bork was asked to describe the meaning of the Ninth Amendment to the Constitution, which suggests that the American people have other rights beyond those that are enumerated in the Bill of Rights.

But Bork suggested that it was impossible to know what the Ninth Amendment really meant. He then used an analogy that lasted well beyond the defeat of his nomination by the Senate. “I do not think you can use the Ninth Amendment unless you know something of what it means,” Bork said. “For example, if you had an amendment that says, ‘Congress shall make no,’ and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.” Bork’s likening the Ninth Amendment to “an inkblot” took on a life of its own, an indelible reminder of how not to give a sound bite.

In 1991, Clarence Thomas’ confirmation hearing also generated lasting controversy and resulted in a memorable sound bite. Nominated by President George H.W. Bush to succeed Justice Thurgood Marshall, Thomas faced the Senate Judiciary Committee a second time after his initial hearing concluded. The return engagement was prompted by accusations of sexual harassment leveled against Thomas by Anita Hill, who was questioned at length by senators after she gave an opening statement.

Thomas adamantly denied the allegations and then launched a blistering attack against the committee for allowing the charges against him to be aired in public and on national television. As part of his strong pushback against the senators, Thomas said, “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.”

The legacy of Ginsburg’s confirmation hearing in 1993 is based partly on what she said and partly on the way senators have characterized her testimony. Nominated by President Bill Clinton to succeed Justice Byron White, Ginsburg told the committee, as did others before her, that she would have to be careful not to discuss issues or cases that might come before her on the Supreme Court. In her opening statement to the committee, Ginsburg said, “[I]t would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.” She said a judge should “offer no forecasts, no hints,” and later in testimony repeated “no hints, no forecasts, no previews.”

Having said that in her opening statement, Ginsburg relied on that position often during her hearing, but she was also at times forthright in answering questions, including discussing Roe v. Wade, the 1973 abortion ruling, gender discrimination and other issues. Since 1993, however, senators have recast that hearing to make it seem that Ginsburg represented the height of recalcitrance. Most recently, during Kavanaugh’s hearing, Republican senators referred repeatedly to the “Ginsburg rule” to defend the nominee’s assertion that he had to avoid commenting on issues he might later have to decide as a justice. Generally, senators supporting a nominee seem to invoke the Ginsburg rule to defend the nominee’s refusal to answer many questions about current legal doctrine, while senators opposing a nominee decry the practice as giving the Senate too little information with which to evaluate a future justice.

The top prize for a legacy from a Supreme Court confirmation hearing may well belong to Chief Justice John Roberts, nominated by President George W. Bush to succeed Rehnquist as chief justice. In his 2005 hearing, Roberts famously compared a justice to a baseball umpire. Said Roberts, “Judges are like umpires. Umpires don’t make the rules, they apply them.” Perhaps no line from a Supreme Court confirmation hearing has been more widely quoted, both in subsequent hearings and in legal commentary. Roberts’ analogy has been widely criticized in some academic circles for describing too modest a role, both for umpires and for judges.

Kavanaugh’s recent confirmation, which included a hearing on allegations of sexual assault that paralleled the Thomas process, introduced at least two firsts for nominees: Kavanaugh’s television interview with Fox News and his op ed column for The Wall Street Journal, both defending himself against the allegations. Kavanaugh is also quite likely to be quoted well into the future for saying under oath before the Senate Judiciary Committee that the Senate’s “advise and consent” role had been transformed into a “search and destroy” function.

At a ceremony at the White House the night before his first oral arguments, Kavanaugh called the Senate confirmation process “contentious and emotional.” “That process is over,” he continued. “My focus now is to be the best justice I can be.” Although the process itself is over, its legacy – for current politics, for the court and for Kavanaugh – remains to be seen.