Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade

Notes

139 Notes Ch a pt er One 1. As we discuss at length in chapter 2, before 1868, nominations went to committee or to the full Senate without hearings. Between 1868 and 1929, three nominees had very limited hearings. Between 1929 and 1954, nominees had hearings but did not often appear or give testimony. 2. As we discuss in chapter 2, Southern senators on the Judiciary Committee saw Justice Harlan’s 1954 confirmation hearing as an opportunity to stall the implementation of the Court’s ruling in Brown. Ch a pt er Two 1. Specter is quoted in Kagan 2010, 63. 2. Though in later years, advice has come to mean the president consulting with senators on potential nominees. 3. Much of the history in this section comes from an invaluable Congressional Research Service report by Rutkus and Bearden (2009), and from the excellent historical sections in Ringhand and Collins (2011). 4. Most historians acknowledge that Brandeis’s hearings were “laced with anti-Semitism” and efforts to prevent Brandeis from becoming the Court’s first Jewish justice (Wittes 2009, 45). 5. Rutkus and Bearden report that between 1923 and 1946 most nominees were actually referred to a subcommittee first, and then to the full Judiciary Committee (7). 6. This applies, of course, only to nominees who advanced to the hearing stage, not those who were withdrawn before they got to a hearing, such as Douglas Ginsburg and Harriet Miers. 140 notes to pages 14–28 7. Even Carswell’s defenders in the Senate were lukewarm in their support, often attempting to recast his “mediocrity” as an asset rather than a liability. For example, Louisiana senator Russell Long said, “Does it not seem that we have had enough of those upside down, corkscrew thinkers? Would it not appear that it might be well to take a B student or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting a 100% increase in crime in this country?” Senator Roman Hruska added, “There are a lot of mediocre judges and people and lawyers, they are entitled to a little representation, aren’t they? We can’t have all Brandeises, Frankfurters, and Cardozos” (Time 1970). 8. The House started televising regular business on C-SPAN in April of 1979, but the full Senate did not even consider a resolution to allow coverage of the Senate floor’s regular business until 1984. It was defeated at first, but in July 1986 the Senate allowed coverage on a permanent basis (Crain and Goff 1988). 9. Our method for identifying and counting questions is discussed in detail in the next chapter. See also Ringhand and Collins (2011) for similar findings. 10. Figure 2.2 graphs the number of senators that had exchanges with each nominee, with black bars representing senators that had exchanges and gray bars representing senators that did not have exchanges. The overall size of the bars combined represents the total number of senators on the Judiciary Committee. 11. The outliers here are the same as in figure 2.1: Marshall, Haynsworth, Bork, and Thomas. For reasons explained earlier, these four hearings were unusually long, resulting in a higher per-senator average than the overall trend would indicate. 12. The Bricker Amendments were proposed constitutional amendments to limit the treaty power of the U.S. government and the president’s ability to enter into executive agreements with foreign powers. 13. In fact, it may have started before Harlan as well. Years earlier, Felix Frankfurter expressed strong reservations about answering specific questions, arguing instead that his confirmation should turn on his past record, not his current views—a strategy that Ruth Bader Ginsburg would years later call the “Frankfurter tradition” (Ginsburg 1988). Moreover, as we noted earlier, some nominees between Frankfurter in 1939 and Harlan in 1955 were disinclined to accept the Committee’s invitation to testify at all. Thus even before Harlan there was a certain degree of hesitancy on the part of prospective justices when it came to answering questions at their hearings. 14. Somewhat infamously, Scalia (33) took this policy so seriously that he even refused to give a firm answer to his views on Marbury v. Madison. 15. Of course, the question of whether recent nominees engage in these kinds of maneuvers more than their predecessors is a critically important one, and we address it in depth in subsequent chapters. [18.216.32...