The confirmation hearings for President Donald Trump’s Supreme Court nominee, Neil Gorsuch, are now underway. As expected, the Senate Democrats have the long knives out for him and are using the hearings in a vain attempt to derail his nomination.
Interestingly, confirmation hearings for judicial nominees were not always a public spectacle of political theater. In fact, confirmation hearings for judicial nominees are relatively new.
Here are seven things you need to know about hearings for judicial nominees.
1. There was once a time where judicial nominees didn’t have to go through public hearings. Judicial nominees simply had an up-and-down vote in the Senate. There were some private hearings held by the Senate Judiciary Committee after 1868, when the rules were modified so nominees were required to be voted on by a committee first, but only one hearing in 1873 involved witnesses.
2. The first public confirmation hearing for a Supreme Court nominee was in 1916. The hearing was for President Woodrow Wilson’s nominee, Louis Brandeis, who was a lighting rod for criticism between his history of progressive activism and the fact that he was the first Jewish Supreme Court nominee and an ardent Zionist. Brandeis didn’t even attend his hearings, which the Senate held in private. He was eventually confirmed among party lines.
3. The first Supreme Court nominee to attend confirmation hearings was Harlan Stone in 1925. Stone, who was nominated by President Calvin Coolidge, was facing questions from Sen. Burton Wheeler (D-MT) for pursuing an indictment against Wheeler during Stone’s tenure as attorney general despite the Senate clearing Wheeler of any charges. Instead of withdrawing Stone’s nomination, Coolidge agreed to have Stone appear at a hearing to elaborate on his actions as attorney general. Stone’s performance at the hearing was enough for him to sail through the Senate.
4. Felix Frankfurter was the first Supreme Court nominee to have a “modern-type hearing.” President Franklin Delano Roosevelt’s previous nominee, Hugo Black, didn’t have a public hearing; it was only after he was confirmed that it became known that he was a former Ku Klux Klan member. The ensuing fury prompted Frankfurter to appear at a public hearing in 1939, where he faced numerous questions about his record but refused to answer any of them. The Senate still confirmed him.
5. Confirmation hearings didn’t morph into kabuki theater until Robert Bork’s hearings in 1987. The Reagan administration nominated Bork thinking he would coast through the Senate, as his legal and academic resume was impeccable. Until then, that was normally the threshold necessary to be confirmed by the Senate. But the late Sen. Ted Kennedy (D-MA) fundamentally transformed judicial confirmation hearings with his “Robert Bork’s America” speech:
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, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Kennedy concocted a dystopian horror tale of an America plagued with supposed right-wing tyranny if Bork was confirmed to the Supreme Court. It was absurd and appalling, especially to those who knew Bork as a man of upstanding character who understood the proper role of the judiciary. But Kennedy and the Democrats were more intent on appeasing their left-wing interest groups by slandering Bork to stonewall his nomination. They succeeded; they have followed the same blueprint for other conservative court nominees such as Clarence Thomas.
Kennedy didn’t just slander Bork out of a Supreme Court position; he forever tainted judicial confirmation hearings by transforming them into a vehicle to lob politicized smear jobs toward nominees.
6. It was revealed in 2001 that Senate Democrats on the Judiciary Committee were taking orders from left-wing organizations in scheduling confirmation hearings. In his 2005 book Men In Black: How The Supreme Court Is Destroying America, Mark Levin highlighted a memorandum sent to Sen. Dick Durbin (D-IL) in 2001 that outlined how Senate Democrats on the Judiciary Committee and left-wing organizations agreed to “(1) only one hearing per month; (2) no more than three judges per hearing; (3) giving Committee Democrats and the public more advance notice of scheduled nominees; (4) no recess hearings; and (5) a commitment that nominees voted down in Committee will not get a floor vote.”
Once the Republicans regained the Senate in 2002 midterm elections, the Senate Democrats could not follow through on what was outlined above, but it reveals that judicial confirmation hearings had become politicized to the point where outside political groups were establishing the ground rules for confirmation.
7. The partisan nature of judicial hearings is detrimental to the judiciary as a whole. Federal Judge John Walker Jr. wrote in a 2012 piece for The Atlantic:
First, the politicization of confirmation hearings perpetuates the misconception that the judicial role is political. This lowers the public esteem on which courts depend. Federalist Paper No. 78 famously pointed out that the judiciary has neither the legislature’s purse nor the executive’s sword. Thus, compliance with court decrees is generally voluntary. It cannot be expected if litigants believe that judges ignore the merits in favor of personal predilection. This danger is especially great in the context of rulings against other government actors. Presidents obey judicial decisions — as President Nixon did in turning over the Watergate tapes, sealing his resignation – -because not doing so would lead to constitutional and political crisis. But as the public grows to perceive judges as political, it becomes easier for presidents and others to disregard judicial decisions as partisan pronouncements.
Second, fewer qualified candidates will seek or accept judicial nominations if the confirmation process includes publicized political attacks as a matter of course. Some years back, after the contentious hearings over Robert Bork’s failed Supreme Court nomination, a distinguished Second Circuit colleague of mine remarked that he would never accept a nomination to the Court.
Third, as senators play whack‑a‑mole with judicial nominations, vacancies on the federal bench go unfilled and the administration of justice is impeded.
Finally, the politicization of confirmation hearings sows public distrust in government institutions as stabilizing forces in our racially, ethnically, and religiously disparate society. Americans yearn for a government they can believe in. By unnecessarily and gratuitously distorting the judicial role, Senate hearings weaken the government as a whole in the eyes of the public. The time of a senator can be put to better use.
Gorsuch’s hearings are already following that pattern, as Senate Democrats have used the first day of hearings to whine about how Judge Merrick Garland should be on the court instead. The issues they’re grilling Gorsuch on are more political than legal in nature, such as abortion, voting rights and corporate interests.
The judiciary has been politicized; it has lost its role of the being defender of the law for quite some time. The partisan nature of judicial confirmation hearings has only emboldened that. It is the sign of a decaying republic.
(H/T: National Constitution Center)