A Brief History of SCOTUS Confirmations

I wanted to comment on Ben Sears' post about recess appointments, but I decided to turn it into a post instead. Reticulator opined that SCOTUS hearings were a recent development, so I decided to look it up. And that is indeed the case.

SCOTUS nominations were only referred to the Senate Judiciary Committee starting in 1868, and it held its first hearing on a nomination in 1873 when President Grant nominated George Williams for Chief Justice. But he was accused (correctly) of using government funds while he was Attorney General to pay for his wife's expensive carriage. Although he later replaced the funds, it was enough to prompt the Judiciary Committee to hold its first recorded SCOTUS hearings, albeit behind closed doors. As a result, Grant withdrew Williams' nomination.

The next hearing was only held in 1916 when Wilson nominated Louis Brandeis, who was a prominent crusading progressive lawyer and Zionist. Because his nomination was controversial, the Judiciary Committee held public hearings. He was an open advocate for social issues informing decisions on legal issues. Brandeis refused to participate, saying that his record spoke for itself. The committee called witnesses for and against him. Although anti-Semitism was not openly discussed, it was also a factor in the opposition. Eventually the Senate approved him 47-22, but it took an unprecedented four months.

The next act in hearings occurred in 1937, when Roosevelt nominated Senator Hugo Black. He had been an open member of the Klan, but he said he had resigned in 1925 when he ran for Senate. He was also controversial for his outspoken support of the New Deal. There were no hearings; and even though there was extensive public criticism, he was approved by Senate 63-16. After he was sworn into office, his continued Klan membership became public knowledge; so the American Bar Association demanded public hearings for all future nominees.

Roosevelt's nominee Felix Frankfurter became the first victim of the ABA recommendation in 1939. Frankfurter was controversial because he had helped found the ACLU, largely to defend Communists caught up in the Palmer raids in 1919-1920. He was also a strong supporter of the New Deal, and this time the anti-Semitic opposition common in America before World War II was open. The Judiciary Committee held public hearings as had been requested, and Frankfurter appeared publicly to defend himself, but only against what he called slanders that had been made against him. He was approved on a voice vote, but a precedent had been set.

Hearings became more common in the following years, but Eisenhower's nomination of John Marshall Harland II in 1955 resulted in a momentous change. Committee chairman James Eastland and other southern Senators opposed his desegregationist and pro-civil rights views. He was the first nominee to discuss his judicial views before the committee. And since his nomination, every nominee has appeared before the Judiciary Committee to discuss his judicial philosophy. Marshall was approved 71-11.

In 1986 Reagan nominated Antonin Scalia to the court. There was little controversy over his nomination, as he did not have a long paper trail, and he was an effective and humorous advocate for himself. Following two days of hearings, he was approved 98-0.

Most hearings were uncontroversial and one-day affairs until Reagan nominated Robert Bork in 1987. Not only had Bork fired Special Prosecutor Archibald Cox at Nixon's order in 1973 in the infamous Saturday Night Massacre, but he also held controversial views on the role of executive power and the power of states to roll back civil rights. And he was replacing a liberal retiring justice Lewis Powell, so he would shift the ideological balance of the court. Unfortunately, Bork took the opportunity to speak extensively on his controversial views, giving much ammunition to his opponents. Ted Kennedy took the lead in slandering Bork as a segregationist and an advocate of rogue police raids, back-alley abortions, and censorship. Judiciary Chairman Joe Biden prepared a brief that slandered Bork as well. The Senate rejected his nomination 42-58. The nastiness of this nomination fight has carried over into nearly every Republican nomination since.

It seemed impossible that SCOTUS hearings could become even more vitriolic than Bork's, but George H. W. Bush's nomination of Clarence Thomas to replace Thurgood Marshall in 1991 did just that. Joe Biden presided over these hearings as well. The first hearings focused on Thomas' view on natural law, and Thomas was questioned for an unprecedented 25 hours. The Judiciary Committee voted to send his nomination to the full Senate but without any recommendation. While the Senate was debating his confirmation, an FBI interview with Anita Hill was leaked to the press; and the Judiciary Committee hearings were re-opened. Hill lied for 7 hours to the committee, alleging that Thomas had sexually harassed her at the EEOC. Thomas memorably called this second hearing a high-tech lynching, but the Senate approved him 52-48.

Unbelievably SCOTUS confirmation hearings of Republican nominees have only gotten worse since then.