“I was so busy trying to keep my job that I forgot to do my job.”
-President Andrew Shepherd, An American President

               Before 1981, Supreme Court justices, some great, some awful, were usually nominated and confirmed expeditiously. Most of the public hardly knew which justices were coming and going. After the Warren Court handed down some controversial decisions in the 50’s and 60’s, the public began paying more attention to who was on the court, and hence confirmation hearings became more newsworthy.

Before 1981, the time lapse from nomination to confirmation was rarely more than ten days[1] and most nominees were confirmed on a quick voice vote.[2] Most other confirmations were wrapped up in a matter of a few weeks. Those few that stretched out for more than sixty days usually resulted in the nominee’s rejection by the Senate or the President’s withdrawal of the nomination. Although the Senate Judiciary Committee was formed in 1816, it did hold public hearings and hear witness testimony until 1916.[3] Before then, the committee met privately and informally, or not at all.[4]

What changed in 1981? In a word: television. When the first woman in the court’s history was nominated, America watched Sandra Day O’Connor’s confirmation hearings live on network television. Her nomination was controversial mostly because she was the first woman, and also because her views on abortion were somewhat murky. Otherwise, O’Connor proved to be a soft-spoken, moderately conservative nominee. Although the hearings focused on abortion, it did not turn out to be an ugly spectacle.[5]

Since 1981, when television executives decided confirmation hearings ought to be televised as a public service, there have been 20 openings on the Supreme Court.[6] What started out okay with the O’Connor confirmation have not always gone well for other nominees. With the advent of politically-biased cable news networks and with the growing hyper-partisanship and antipathy between Republicans and Democrats, what was once believed to be a public service civics lesson became bad daytime soap operas. Beginning in 1987, the hearings, once contentious but generally civil, escalated into ideological warfare. The Senate’s constitutional duty of “Advise and Consent” was designed to be a power-balancing tool and a check against executive branch overreach. Televised hearings were meant to enhance the peoples’ confidence in government and the fair and just administration of the laws of the land. Instead, it has become a process which has sullied the dignity and stature of all three branches of the federal government while diminishing the people’s confidence in the rule of law.

 

 

There Has to Be a Better Way . . .

 

               Robert Bork’s nomination in 1987, Clarence Thomas’ in 1991, Brett Kavanaugh’s in 2018, Amy Coney Barrett’s in 2020, and Ketanji Brown Jackson’s in 2022, plus Harriet Miers’ quick withdrawal in 2005 and Merrick Garland’s despicable lockout in 2015, provide seven sound reasons why we need substantial reform in the Advise and Consent process.

 

1. The President’s Unfettered Discretion to Nominate

The Constitution does not give Presidents the power to choose anyone they damn well please. Without the Senate’s consent, the President can’t place anyone on the court. Since 1789, the Senate has either rejected or forced Presidents to withdraw more than two dozen nominees. That many failures are more likely than not an indication that the Senate is not offering enough advice.[7] Here are two recent examples:

Robert Bork, arrogant, officious, and radically conservative, was the wrong choice to replace the humble, gentlemanly, moderate Lewis Powell in 1987. Criticized by the far right of his party for nominating the not-conservative-enough Sandra Day O’Connor, President Reagan, in 1986, nominated Antonin Scalia, an outspoken but engaging jurist and eminent legal scholar with a staunchly conservative record as a Circuit Court of Appeals judge. He was confirmed by a 98 – 0 vote. A year later, Reagan figured he could repeat with another Scalia and passed over many highly recommended conservative federal judges and chose Bork. However, six weeks after Scalia was confirmed and eight months before Bork was nominated, Republicans lost the Senate in the mid-terms, and Democrats were in no mood to put another Scalia on the court. Whether Reagan knew it or not, he should have been advised that never in history has a lame duck President succeeded in getting a controversial nominee through a Senate controlled by the opposing party. Bork failed 42 – 58.[8] Following his setback, Reagan listened to his advisors and nominated Anthony Kennedy, a genial, conservative jurist out of the Lewis Powell mold. He breezed through on a 99 – 0 vote.

Harriet Miers was a good friend and advisor to President George W. Bush. It turned out to be her only qualification for the Supreme Court. Before her short tenure with the Bush Administration, she had been a corporate lawyer with no experience in matters of constitutional law.[9] Moreover, she had no settled judicial philosophy to guide her thinking on important issues. Firestorms of opposition came in from both sides, and her nomination was withdrawn three weeks later. It was a humiliating experience for both Bush and Miers.

In both cases, the President would have benefitted from good advice from the right people, especially senators who have a duty to advise, if for no other reason than to spare Judge Bork and Ms. Miers from crushing heartache and public humiliation.

 

1. The Senate Majority Leader’s Control Over the Process

The majority leader of the Senate has considerable power in what business is sent to committees and what comes to the Senate floor for debate and vote. Two recent examples will demonstrate that his or her power must be curtailed.

Merrick Garland was an ideal choice for the Supreme Court, a scholarly, respected jurist with an impeccable record.[10] The seat vacated by the death of Antonin Scalia left the court evenly divided. A judge as far to the left as Scalia was to the right would be a significant pendulum swing in the court’s ideological make-up, and if President Obama tried push a controversial nominee through a hostile Senate, he would face the exact same problem Reagan had with Robert Bork. Instead, an independent moderate would bring some much-needed homeostasis to the court. Even Mitch McConnell, when he was Minority Leader had once advised President Obama that Garland would be very good choice. Oh, but look what happened when McConnell became Majority Leader a few years later, and President Obama nominated Garland. McConnell maliciously fabricated a bogus Senate rule about selecting Supreme Court justices during the last year of a President’s term, and invoked it to bar Garland from even getting a hearing, much less a vote on his nomination. McConnell, acting alone and on his own authority as Senate Majority Leader, withheld consent, a privilege reserved only to the entire Senate. His Machiavellian move paid off. A Republican won the 2016 election and the court got another right-wing libertarian, Neil Gorsuch.

Justice Ruth Bader Ginsburg died on September 18, 2020. Her successor, Amy Coney Barrett was confirmed by the Senate 27 days later, just 19 days before Republicans lost the White House and the Senate. McConnell, displaying his enigmatic grin, promised the media she would be on the court before election day, and he delivered. What happened to the rule he invoked to deny Merrick Garland an opportunity to take a seat on the court? Since it never existed, Garland’s lockout and Barrett’s railroad job can only be ascribed to the kind of raw, capricious power that an unscrupulous, hypocritical Senate Majority Leader can wield. The result was another right-wing libertarian on the court.

 

III. Televising the Confirmation Hearings

Since live, gavel-to-gavel television coverage of Senate confirmation hearings have become the norm, the Judiciary’s Committee charge of Advise and Consent has become a pathetic sham. This committee within the so-called “world’s greatest deliberative body” spends inordinate time engaged in a blend of calumny, political mud wrestling and showing off. During Q&A, senators often begin a question with long discourses about this and that, and sometimes without asking a question. If they do ask a question, the proponent side of the aisle lobs easy, cream puff questions, while the opponents hurl 100 mph beanballs; and neither are really designed to inform or persuade anyone. What seemed like a good idea in the public interest forty years ago, now just pisses off one part of the country, feeds raw meat to the grievances and prejudices of another part of the country, while the remainder of the viewers switch over to Netflix.

Confirmation hearings really began going off the rails with Robert Bork’s confirmation. Following Bork’s debacle, two relatively calm confirmations followed, placing Anthony Kennedy and David Souter on the court with lopsided, bipartisan vote margins. Then came Clarence Thomas, an eccentric, ultra-right jurist, to replace Thurgood Marshall, a liberal civil rights icon. No two African American jurists could be farther apart in their judicial thinking, and the result would be the court’s most liberal justice being replaced by someone who has become perhaps the court’s most conservative justice. The table was set for a potential bruhaha.

Thomas’ nomination was President George H. W. Bush’s attempt to refashion the court in line with Ronald Reagan’s vision, and he hoped to neutralize the embittered Democrats with this quiet, dignified African American. That didn’t happen. These hearings actually ramped up the ferocity of partisan bickering and set a further bad precedent of going after witnesses’ character and credibility with vicious rhetoric based on scant evidence. In addition, the hearings pointed out the need for strong, effective leadership from the chair to curb out of bounds tactics and behaviors.[11]

Brett Kavanaugh’s confirmation was Clarence Thomas’ on steroids.[12] Temper tantrums by the nominee, witness savaging and wild speeches from senators further damaged the Senate’s reputation as a great deliberative body. Dreadful, immature and reckless conduct was gaining a foothold as an element of the Judiciary Committee’s regular order of business.[13]

Amy Coney Barrett’s confirmation, like that which followed hers, had no scandals to exploit and proceeded rather calmly. The provocation here came from being hurriedly nominated by a President who publicly announced that he expected “my judges” to do his bidding.[14] With that, the Democrats felt compelled to dig in.

Ketanji Brown Jackson’s confirmation also lacked a scandal, so the Republicans fabricated one of their own, trying to paint her as a Critical Race Theory-promoting, pedophile-coddling judge who is indifferent to victims of child pornography and child sex trafficking.[15] With the possible exception of Brett Kavanaugh’s adolescent, sulking rage, Judge Jackson’s confirmation reached new heights of pettiness and pettifoggery by some Republican senators. In particular, senators are making claims against Judge Jackson which are out and out lies, and all for the sake of their self-promotion to a group of voters who thrive on malice against people and ideas they don’t understand. Talk about a high-tech lynching! Clarence Thomas, by comparison, got off easy.

Television has changed the Senate’s confirmation hearing room from an interrogation forum into high school cafeteria food fight. If the Senate majority and the President are of the same political party, the nominee’s confirmation is a foregone conclusion before the hearings even start, so why have these disgraceful showpieces? Only when the nominee’s qualifications or character places the outcome in genuine doubt is there any need for extensive hearings.

 

1. Tolerating Bad Behavior and Other Unnecessary Stuff

Television ostensibly was supposed to educate the public and allow us to become eyewitnesses to history-making events going on in our Capitol. Instead, it become a showcase of seemingly endless, boring bantering by senators, interrupted from time to time with shameless spectacles of bad behavior.

Television has allowed us to watch seemingly good people behaving badly, even maliciously. It took a quantum leap in October of 1991, when Anita Hill testified at Clarence Thomas’ hearings. Most notable was the response of some senators to Prof. Hill’s sexual harassment claim. Sadly, it lent precedent for senators to remove the velvet gloves of senatorial decorum and restraint and with bare fists going after witnesses and nominees with a viciousness not seen in the Capitol since May 22, 1856, when Sen. Charles Sumner of Massachusetts was beaten senseless with a cane wielded by Rep. Preston Brooks of South Carolina. Instead of being a regrettable episode never to repeat, the obloquies hurled at Prof. Hill have found a home in the toolbox of some senators, particularly those who have made a Faustian bargain to say and do despicable things for the sake of political gain.

Unlike the Kavanaugh defenders, the Thomas outpouring of outrage appeared to be spontaneous. The Hill attackers seemed genuinely motivated by an overriding desire to get Thomas confirmed. Kavanaugh and his defenders’ histrionics struck me as being staged, as though working off of a script mainly designed to gain greater favor with President Trump and his hungry-for-raw-meat base. Their primary goal was not getting Kavanaugh confirmed, that was already a given.[16] Their goal, other than self-promotion, was what it has always been since Newt Gingrich became Speaker of the House in 1995: destroying the Democratic Party.

Concerning the unnecessary stuff, let’s begin with opening statements. Opening statements in a trial are meant to educate the fact finders, that is, the jury, on what to expect over the course of the trial. In confirmation hearings the fact finders are each other, and to some extent the American viewing audience. Therefore, can anyone reasonably defend the need for each side giving eleven opening statements, especially when hardly a soul is paying attention? A grateful public would appreciate it if senators would spend less time “writing the words of a sermon that no one will hear”[17] and spend more time learning about the nominee’s real qualifications.

Next are the senators’ penchant for asking ethically inappropriate questions and soliciting ruling commitments from the nominee. They know in advance the nominee is not ethically permitted to answer them, but they do it anyway. Nominees will never reveal how they will rule on specific cases, or how they would have ruled in past Supreme Court cases, but some senators keep trying by pursing “back door” lines of questioning.[18] In my mind, such tactics constitute subornation to commit ethical violations, and senators who do it should be sanctioned.[19]

This has got to change. While some Presidents put great care and effort into choosing their nominees, others are more inclined to just follow their political advisers.[20]  It’s also safe to say that, throughout history, most Presidents aren’t always looking for the most talented jurist available. Presidents are legacy-minded and the Supreme Court is a prime spot to establish such a legacy. Consequently, they are looking for someone, preferably under 55, who checks all the right policy and demographic boxes.[21] For sure we will continue getting well-educated, competent jurists, but under the present system we may never again see A-list titans like John Marshall, John Marshall Harlan I, Oliver Wendall Holmes, Jr., Louis Brandeis, Benjamin Cardozo and Robert Jackson.

. . .  And There Is

To improve both competence and confidence in the Supreme Court, I propose statutes and Senate rules – without the need for a Constitutional amendment – which do the following:

 

• Mandates that any vacancy on the court arising within 45 days of a presidential election day will not be filled before election day. Of course, the President is not barred from placing a name in nomination. Following the election, the winner may either reaffirm the nomination or withdraw it.
• Establishes a nine-member Judicial Nominating Commission (three appointed by the President, three appointed by the American Bar Association, and three chosen by the other six members). The commission will be formed at the beginning of each President’s term in office and charged with screening, investigating, and supplying the President with a list of the ten best-qualified candidates available and willing to serve, and from which the President must select his or her nominee. The FBI will assist both the commission and the President in thoroughly vetting each candidate that makes the short list. Senators can exercise their advice function by lobbying the commission on behalf of potential candidates, or actually become members of the commission.
• Mandates that the Senate will either confirm or reject the President’s nominee no later than 90 days from the date the President’s chosen nominee is officially announced. If the Senate has not timely taken the required action, the nominee will be deemed confirmed. Justifiable extensions may be granted.
• Make it a crime (preferably a felony), punishable by fine and imprisonment, plus automatic removal from office along with forfeiture of pension, for any senator to willfully or recklessly obstruct, delay, hinder, or interfere with the regular and orderly process of the Senate’s exercise of its Constitutional duty. In addition, there should be a code of conduct designed to restore the Senate’s reputation as the world’s greatest and most civil deliberative body. Complaint of violations should be referred to the Senate Ethics Committee which has authority to impose sanctions capable of deterring future bad behavior.[22]
• Suspending any existing filibuster rule in effect at the time. Confirmation or rejection shall be by majority vote of senators physically present and voting. No quorum is required.
• Public hearings conducted by the Senate Judiciary Committee shall be curtailed and streamlined as follows:
• Within 72 hours of the President’s announcement of the nominee, the White House shall forward to every committee member a packet containing the nominee’s answers to an extensive questionnaire containing detailed biographical, educational, professional, and civic engagement information, including an appendix containing selected published legal and judicial writings authored by the nominee; plus the FBI’s vetting report; plus the Judicial Nominating Commission’s detailed memorandum in support of the nominee, plus any other relevant materials the President chooses to include.
• Judiciary Committee members will meet and decide which witnesses each side intends to call at the public hearing. Witness lists will be exchanged at least 10 days prior to the hearings. Testimony via Zoom and depositions under oath may, for good cause shown, be used in lieu of live testimony.
• The Judiciary Committee will commence public hearings within 30 days of receipt of the President’s nomination packet.
• Committee members from the proponents and opponents shall appoint one, and only one, of its members, or a staff attorney, to deliver an opening statement (30-minute time limit).
• The nominee will have thirty minutes to address the committee. Thereafter, each member shall be allowed ten minutes to question the nominee. There will be only one round of Q&A between senators and the nominee. No member may yield his or her time to another member. Evidentiary rules on materiality and relevancy shall apply. Redundancy is impermissible and excludable by the chair.
• No more than five witnesses shall be allowed to testify for either side. For good cause shown, some exceptions may be granted.[23] Only one member or attorney from each side may question a given witness. The same person need not examine or cross examine all witnesses. Witness statements are limited to 10 minutes, and each sides’ Q&A is also limited to 10 minutes.
• The chair and the ranking member of the committee shall each appoint one member to give a closing argument. Each side is allotted equal time and the length of same shall be determined by the chair.
• A recess will follow, and upon reconvening, and without any further speeches, a vote will be taken by a show of hands and passed on to the full Senate.
• The committee must conclude its business and adjourn no later than 30 days after the opening gavel.
• The full Senate will convene no later than five business days of the committee’s vote (adjournment days count the same as business days). Proponents of the nominee shall have 90 minutes of floor time to debate the nomination and advise the President. The opponents of the nominee shall have equal time, following which the opponents shall have 15 minutes for rebuttal. Following debate, the vote will be taken.

These rules accomplish the following goals and purposes:

1. It initially places the nomination process in the hands of experts who are searching for the best available candidates that the President is likely to choose from. Though not totally           apolitical, it diminishes both the role and influence of political strategists and operatives.
2. It limits the President’s choices to ten eminently qualified people, and significantly reduces the possibility of a President making flawed choices based on patronage, inappropriate personal                prerogatives or sloppy vetting.
3. It gives senators a wealth of relevant information and homework so they can come to the hearings fully prepared to deal with what really matters.
4. Committee work during public hearings will be more focused on what the Constitution tells them they are supposed to do.
5. No more time-wasting, self-serving political speeches. The qualifications of the nominee will take the spotlight rather than the senators.
6. Less redundancy all around.
7. The process will take somewhere between 60 to 90 days to accomplish, start to finish, and will prevent both politically-inspired delay tactics and egregious fast-tracking.
8. It will prevent an unscrupulous Senate Majority Leader or senator from interfering with the process.
9. It just might give the public more confidence in the Supreme Court and the rule of law.

 

Of course, this will never happen. The Senate will never part with anything than limits their powers and diminishes opportunities for public exposure and self-promotion. This may be a harsh criticism of the Senate and an unfair criticism of some of its members who try to do their jobs as intended, but this committee, more than any other, has tarnished the Senate’s reputation as the world’s greatest deliberative body, and a growing number of Americans are losing confidence in Congress’ upper chamber. Since Supreme Court confirmations provide John and Jane Q. Citizen one of the best opportunities to observe the Senate, and perhaps their senator in action, shouldn’t senators try in the most earnest way possible to leave a clear impression of doing good work?

Epilogue 

After saying he would do it, President Biden got an African American woman on the court. Does that fly in the face of my proposed rules? No. Judge, not-yet Justice Jackson would have made the top ten list of any Biden Administration Judicial Nominating Commission. Let’s not forget, America is loaded with talented African American women in the legal profession.

The party out of power always criticizes a sitting President for not putting the best jurist in America on the court, much the same way they only complain about the national debt when not in power. There is no “best jurist in America,” just like there is no “sexiest man alive.” It depends on who is making the judgment calls and what standards they abide by.

My proposed nominating commission would be duty-bound to select ten names from among those people who collectively belong in the category of best jurists in America. These are the eminently qualified, the tip of the pyramid, and there is certainly many more than just one. Below them are the highly qualified, the qualified and the not qualified. Like him or not, Antonin Scalia, was unquestionably one the most prominent Constitutional scholars of his generation, an eminently qualified jurist who would easily make the short list of any nominating commission formed by a conservative President. Likewise, the same would hold true for Ruth Bader Ginsburg for a liberal President. So, you might say, it’s still all about politics. It’s always going to be about politics, but under my rules, Presidents would at least always choose someone who is eminently qualified.

There are literally tens of thousands of lawyers and judges in America who are “qualified” to sit on the Supreme Court. Harriet Miers was one of them. There are perhaps a thousand or so who are “highly qualified.” Brett Kavanaugh is one of them. But the number of those deemed “eminently qualified,” in my opinion, could not fill all 188 seats on a Boeing 737. Any nominating commission worth its salt would only be searching inside that Boeing 737, where they would never find mediocre or flawed candidates like Miers and Kavanaugh, but they would definitely have found Scalia back in the 80’s and RBG in the 90’s.

For the record, Biden was not the first President to promise a nominee from a limited segment of the lawyer/judge population. Reagan promised a woman and got O’Connor. Republicans went along. Trump promised a woman and got Barrett. Republicans went along. Biden promises a black woman and suddenly Republican hair catches fire.

Lastly:

Lindsey Graham, thy name is hypocrite.

Ted Cruz and Tom Cotton, you have a message from Harvard Law School: “Please return your  diplomas immediately; we made a terrible mistake.”

Josh Hawley and Marsha Blackburn, congratulations you’ve just been elected into the Brownshirts Club of the Senate Republican Caucus; quite an accomplishment for first-termers.

 

 

 

 

 

 

[1] Salmon Chase, Lincoln’s Treasury Secretary, was confirmed as Chief Justice on the same day he was nominated, December 6, 1864.

[2] The familiar procedure of “All in favor say ‘aye’; opposed ‘nay’.”

[3] That was the nomination of the anti-Wall Street, anti-monopoly, progressive firebrand, Louis Brandeis, who also happened to be the first Jew ever nominated.

[4] In that 100-year period, 51 justices were confirmed. With the exception of about a dozen of them, the rest were either obscure, mediocre or ineffective. At least seven of them, those who comprised the majority in the Dred Scott case in 1857, the most ill-reputed case in Supreme Court history, were an out and out disgrace.

[5] She was confirmed 99 – 0.

[6] All but three were confirmed.

[7] It seems reasonable that Presidents would follow advice from Senate leadership in his own party that a certain candidate is confirmable or not confirmable.

[8] Six Republicans voted against him and two Democrats voted for him.

[9] The Supreme Court is no place for on-the-job training in constitutional law, no matter how intelligent he or she may be.

[10] He led the Oklahoma City bombing prosecution as a United States Attorney, and at the time of his nomination was Chief Judge of the prestigious D.C. Circuit Court of Appeals.

[11]  The chair of the Judiciary Committee in 1991 was Joe Biden.

[12] A detailed account of Justice Kavanaugh’s confirmation hearing can be found in an essay which will soon be posted on this blog.

[13] All this faux etiquette, such addressing one another as “my distinguished (or my learned) colleague (or friend), the senator from wherever” now seems so inappropriate and about as disingenuous as the spectators at WrestleMania observing the British nobility’s rules of speech etiquette.

[14] A critical piece of “his bidding” was overturning the election in the event he lost. He would need, and he would expect “his judges” to do his bidding. Didn’t turn so well for him.

[15] What always ticks me off about politicians trying to paint judges as soft on crime is they weren’t there when the defendant went on trial; they didn’t see or hear anything live; and they don’t seem to care about mitigating factors which judges are required to consider. A cold, partial record of the case is absolutely no substitute for actually being there, and any senator who practiced law knows that. Yet they persist in substituting their judgment for that of the judge. It also didn’t seem to matter that her sentencing in child pornography cases is in line with 70% of the federal judiciary.

[16] The only way Kavanaugh could lose was to confess to the attempted sexual assault, and even then, the vote would be close.

[17] Couldn’t resist quoting that famous line from The Beatles’ “Eleanor Rigby.”

[18] For example, at Judge Jackson’s hearing, Sen. Marsha Blackburn asked her to define the word woman. The senator was hoping Judge Jackson’s would say something that would open the door into how she might rule in transgender cases. Judge Jackson was too smart to take the bait.

[19] The sanction I would vote for is muting the senator’s mic for the duration of the hearings.

[20] Is it just a coincidence that all the nominees within the last 50 years who experienced rough sailing were nominated by Presidents with no legal background or training? The last law-trained President to meet stiff resistance was Richard Nixon in 1969 and 1970, and before that, one has to go all the way back to James Buchanan’s failed nomination of Jeremiah Black in 1861.

[21] Notably, our recent President picked virtually indistinguishable triplets right out of the Federalist Society catalogue.

[22] For example, Sen Hawley’s outrageous claim that Judge Jackson is a protector of pedophiles. If he can’t prove his claim with clear and convincing evidence, then he should be sanctioned.

[23] For example, if the proponents or opponents of the nominee can justifiably claim surprise from any part of a witness’ testimony, the chair may allow for an undisclosed, unscheduled rebuttal witness to be called.