U.S. Supreme Court building in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)
U.S. Supreme Court confirmation hearings have been called a “kabuki dance,” a “charade” and a “mess.” They are, regardless of modern-day descriptors, the Washington gate that leads to a lifetime seat on the nation’s highest court. Neil Gorsuch on Monday will take his turn.
In the last 30 years, the public has witnessed the good, the bad and the ugly—to borrow the title from that epic spaghetti Western film—as members of the Senate Judiciary Committee picked apart records for clues about how a nominee might rule on the high court.
Chief Justice John Roberts Jr. in 2005 famously likened his role to that of a baseball umpire. “It’s my job to call balls and strikes and not to pitch or bat,” he said then.
Gorsuch, writing in a 2010 decision, used a football analogy: “In this respect, our job is something like the role of the instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call.”
What memories will Gorsuch’s hearing make? Time will tell.
Here are highlights—and lowlights—from the 10 most recent Supreme Court confirmation hearings.
Robert Bork wanted an ‘intellectual feast’
The 1987 hearing for Robert Bork is often viewed as the starting point for the modern-day trend toward greater rancor and politicization of the process. Though he was a respected Yale Law School professor and appeals judge, Bork’s views on civil rights and abortion triggered fierce opposition. Liberal groups argued against his nomination in direct appeals to the public that have since become commonplace—for supporters and detractors.
At his hearing, Bork came across, by some observers, as an out-of-touch scholar. One of his most memorable lines came in response to a question about why he wanted to be a justice. “It would be an intellectual feast just to be there and to read the briefs and discuss things with counsel and … with my colleagues,” he said.
The Senate defeated his nomination by a 58-42 vote. The term “borked” entered the lexicon as shorthand for being vilified.
Anthony Kennedy and ‘expansive’ liberty
Perhaps the senators were exhausted by the seven-month battle over the vacant seat, or maybe then-Judge Anthony Kennedy had learned from Robert Bork’s experience how to avoid that judge’s missteps. On Feb. 3, 1988, Kennedy won a unanimous confirmation vote of 97-0.
During the floor debate, some on the right praised Kennedy as an advocate of judicial restraint. Democratic senators said Kennedy believed in the Constitution as a living—not frozen—document. But did any of them see in one of his answers during his hearing what later would become the animating feature of Kennedy’s jurisprudence?
“I think that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage,” Kennedy said then.
David Souter praises ‘principled’ Brennan
David Souter of New Hampshire was viewed as a “stealth” candidate who arrived on Capitol Hill with a dearth of writings or opinions that could be attacked.
After serving as a prosecutor, and then a judge in New Hampshire, Souter sat briefly on the U.S. Court of Appeals for the First Circuit before President George H.W. Bush appointed him to the Supreme Court in 1990. Souter’s short paper trail frustrated some senators, from both parties. As did Souter’s refusal to tip his hand on abortion or other issues that could come before him.
Still, Souter did drop some hints that he might not be as conservative as Republicans wished. He did not embrace originalism, and said his liberal predecessor, William Brennan Jr., was ”one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have.”
The Senate approved Souter by a 90-9 vote. As a justice, Souter often voted with liberals on the court, and the admonition “No More Souters” has been a mantra of Federalist Society conservatives ever since.
Clarence Thomas assails confirmation ‘circus’
Even before Anita Hill’s sexual harassment allegations against then-Judge Clarence Thomas mesmerized the nation, Thomas faced opposition from liberal organizations and questions about whether he was, as President George H.W. Bush declared, “the best qualified candidate” to fill the seat of the late Thurgood Marshall.
Some senators were skeptical of his answer when asked whether he had ever discussed the landmark abortion decision, Roe v. Wade, which was issued while he was at Yale Law School. Thomas said, “Senator, I cannot remember personally engaging in those discussions.”
Thomas’s most electrifying comment came during the Anita Hill sessions when he chastised the committee: “This is not an opportunity to talk about difficult matters privately or in a closed environment. 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. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”
The Senate confirmed Thomas on Oct. 15, 1991, by a 52-48 vote, the narrowest margin in more than 100 years.
Ruth Bader Ginsburg won’t ‘take a pledge’
With her background as an American Civil Liberties Union activist, Justice Ruth Bader Ginsburg has said recently that she could not have been confirmed if she had been nominated in the current political reality. In 1993, she won by a 96-3 vote that at the time did not seem astounding.
Ginsburg arrived at her hearing with a moderate track record as an appeals court judge in Washington. She was helped by President Bill Clinton’s description of her as the Thurgood Marshall of the women’s movement. That analogy, and the chance to add another woman to the one-woman Supreme Court, made it hard for senators to oppose her.
Though other nominees previously had declined to state their positions on hot-button issues, Ginsburg turned the nonanswer into an art form. When asked whether she thought the death penalty was unconstitutional, Ginsburg said, “If you want me to take a pledge, that is one thing you must not ask a judge to do.” Her avoidance of substantive answers has been dubbed the “Ginsburg Rule,” adopted by nominees ever since, including, most likely, Neil Gorsuch.
Stephen Breyer’s Lloyd’s connection
Stephen Breyer, an administrative law scholar, was a known quantity to a number of senators when he faced the Senate Judiciary Committee in 1994 after his nomination to the high court by President Bill Clinton. He had served as a special counsel and later chief counsel to the Senate Judiciary Committee, where he worked closely with Sen. Edward Kennedy on airline deregulation.
The only bump in his confirmation hearing came with questions about his ill-fated investment in Lloyd’s of London—heavily liable for costs in the United States for asbestos and other pollution cleanup—and whether it created potential conflicts for him as a justice.
Then-Sen. Howard Metzenbaum pressed Breyer several times on his potential liability. “If worst came to worst, luckily because I’m in a very fortunate economic situation, about 20 percent to 25 percent of our family assets would have been lost,” Breyer said. “That would have been an awful lot of money … it depended on the year. We’re talking about several hundred thousand dollars.” Breyer easily won confirmation, 87-9.
John Roberts Jr. the ‘umpire’
In his opening statement before the Senate Judiciary Committee in September 2005, chief justice nominee John Roberts Jr. offered perhaps a memorable description of the role of a judge.
“Judges are like umpires. Umpires don’t make the rules; they apply them,” he said. “It’s my job to call balls and strikes and not to pitch or bat.” More than 1,000 law review articles and 100 court decisions since then have invoked—and many of them criticized—Robert’s formulation.
At his four-day hearing, the statement helped cement Roberts’s image as a nonideological jurist who was ready to step into the middle chair without steering the court too hard to the right. “I do not have an overarching judicial philosophy that I bring to each case,” he said. And he embraced stare decisis when he said court decisions that overturn precedents are “a jolt to the system.” He was confirmed by a 78-22 vote.
Samuel Alito Jr. is ‘not any kind of bigot’
Samuel Alito Jr. lacked the pleasant, easygoing demeanor and quick wit of the nominee just before him—John Roberts Jr. More important, however, was the fact Alito would replace the then-swing vote, Justice Sandra Day O’Connor. That guaranteed close examination of the Alito nomination.
There was no question that Alito was conservative. The debate focused on just how conservative, particularly on abortion and other civil rights issues.
The tensest moments involved questions about Alito’s membership in a conservative Princeton alumni group that reportedly opposed the admission of women and minorities.
Alito had listed his membership when applying for a job in the Reagan Justice Department, although he testified he had no recollection of being in the organization. A sympathetic Sen. Lindsey Graham, R-South Carolina, trying to settle whether Alito was biased against women and minorities, asked, “Are you a bigot?” Alito answered, “I’m not any kind of bigot.”
At that moment, Alito’s wife, sitting behind the nominee, began to cry and left the hearing room. Alito was confirmed 58-42.
Sonia Sotomayor, a ‘wise Latina’
Even though she would become the first Hispanic justice in the Supreme Court’s history, nominee Sonia Sotomayor faced several obstacles at her 2009 Senate confirmation hearing.
Sotomayor had a reputation as a gruff appeals court judge from New York, and had to live down a widely circulated statement she had made before students in 2001. “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.”
Republican senators hit her with questions about the statement throughout her four-day hearing. They suggested her statement indicated she would make decisions based on her background and ethnicity. She tried to explain what she meant, but also described it as “a rhetorical flourish that fell flat” and insisted that no racial, gender or ethnic group had an “advantage in sound judging.” The Senate confirmed her, 68-31.
Elena Kagan’s Christmas Day meal
To the extent any judicial nominee can ever enjoy the gauntlet of Senate Judiciary Committee confirmation hearings, then-Solicitor General Elena Kagan appeared to do just that. Kagan faced few obstacles to confirmation.
Sen. Lindsey Graham, R-South Carolina, preparing to quiz her about the Christmas Day shoe bomber, asked where she was on Christmas Day. “You know, like all Jews, I was probably at a Chinese restaurant,” she replied as laughter erupted in the hearing room. “Great answer,” Graham said.
Kagan left then-Sen. Jeff Sessions, R-Alabama, dissatisfied with her response to his accusation that as Harvard Law dean, she defied federal law by barring recruiters from the school’s career services office.
“All that I was trying to do was to ensure that Harvard Law School could also comply with its anti-discrimination policy, a policy that was meant to protect all the students of our campus, including the gay and lesbian students who might very much want to serve in the military,” Kagan said. She was confirmed 63-37, largely along party lines.