The Next Justice: Repairing the Supreme Court Appointments Process

Chapter 1
A Broken Process in Partisan Times
Late on a January afternoon in 2006, Senator Charles Schumer was goading Samuel Alito to explain his stand on abortion rights. The Senate Judiciary Committee was in its second full day of hearings on Alito, George W. Bush's nominee to succeed Sandra Day O'Connor on the Supreme Court. Twenty-one years earlier, Alito had said that the Constitution did not protect abortion rights. Schumer, a Democrat from New York, wanted to know whether Alito had changed his mind, or whether he continued to oppose abortion rights. Alito repeatedly refused to answer, saying that he did not want to commit himself about an issue that he might have to decide after he reached the Court. "I would address that issue in accordance with the judicial process as I understand it and as I have practiced it," said Alito unhelpfully.1
Schumer finally gave up trying to get Alito to answer his question, but not before getting in one last dig at the nominee. Schumer told Alito, "Itis . . . as if. . . afriend of mine . . . 20 years ago said to me, . . . 'You know, I really can't stand my mother-in-law,' and a few weeks ago I saw him and I said, 'Do you still hate your mother-in-law?' . . . And he said, 'Mmm, I can't really comment.' What do you think I would think?" Before Alito could answer, Schumer interrupted and added, "Let me just move on. You have a very nice mother-in-law. I see her right here and she seems like a very nice person."2
Schumer's frustration is easy to understand. Senators have rarely made much headway when questioning recent Supreme Court nominees about Roe or any other hot-button controversy. The questions have become routine, and the answers (or nonanswers) follow familiar patterns.3 These stylized exchanges between senators and nominees are a recent development. Public hearings on Supreme Court nominations did not become common until the 1950s, and, for most of the twentieth century, contested Supreme Court nominations were rare.4 In the seventy-four years between 1894 and 1968, the Senate rejected only one nominee to the Supreme Court (he was John J. Parker, whom a Republican-controlled Senate rejected by a 41-39 vote in 1930 even though he had been nominated by a Republican president, Herbert Hoover).5
During this period, presidents sometimes pursued remarkably bipartisan approaches to appointing justices. Most notably, Dwight Eisenhower, a Republican, selected William Brennan because he wanted to nominate a Catholic Democrat who would appeal to constituencies that might support Eisenhower in the next election. Eisenhower's four other nominees, including California governor Earl Warren and three sitting federal court judges, were moderate Republicans. The Senate confirmed all five Eisenhower nominees by large margins.6 Warren and Brennan went on to become great liberals, while two of Eisenhower's later appointees, John Marshall Harlan III and Potter Stewart, had distinguished conservative careers. Some people believe that the Eisenhower justices were the best group ever appointed to the Court by a single president.7
Eisenhower's appointees left a legacy that made future presidents unlikely to repeat his strategy. The Warren Court thrust itself into political controversies over racial segregation, school prayer, birth control, and the rights of criminal defendants, among other topics. As a result, the Court riveted the attention of voters and interest groups. The days when presidential candidates could ignore the Court in their campaigns, as Eisenhower had done, were over. Some presidential candidates, including both Richard M. Nixon and Ronald Reagan, made opposition to the Court's rulings a centerpiece of their campaigns. Presidents and senators scrutinized the views of Supreme Court nominees with new intensity, and partisan confirmation battles became regular events.
In the four decades since Earl Warren retired, seven nominations have been either rejected by the Senate or withdrawn by the president: two from Lyndon Johnson (Abe Fortas and Homer Thornberry), two from Richard Nixon (Clement Hainsworth and Harold Carswell), two from Ronald Reagan (Robert Bork and Douglas Ginsburg), and one from George W. Bush (Harriet Miers).8 In addition, George H. W. Bush's nomination of Clarence Thomas survived by a narrow 52-48 vote after a vitriolic debate that focused on allegations of sexual harassment.9
During this tumultuous period, three factors have shaped the process for appointing Supreme Court justices: a politically prominent and controversial Court; presidents who sought nominees who would advance their ideological perspectives while on the Court; and Senates that have battled fiercely about whether to confirm those nominees.