Hearings on Supreme Court nominees weren’t envisioned by the Framers

REUTERS/Jonathan Ernst
Members of the Senate Judiciary Committee shown during last year's confirmation hearings for Supreme Court nominee Judge Neil Gorsuch.

As we prepare for Senate hearings on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, you might want to know that the holding of such hearings was not the original intention of the Framers of the Constitution.

How do I know that? I’m a history nerd (as well as a skeptic on the whole “original intentions” gag, at least if we take those words to literally mean the “original intentions” of the Framers, who had no knowable intentions on a great many 21st century matters).

Back when the first members of the Supreme Court were appointed (at a time when the Framers of the Constitution were still around and some of them were in the Senate, and the former presiding officer of the Constitutional Convention was president of the United States, so perhaps they were the experts on original intention), there were no hearings held on the nominations of the original Supreme Court justices.

Maybe you’re thinking there was just too much to do, getting the new government up and running to spend time on hearings on Supreme Court nominations. If so, nice try, but no cigar.

First such hearings: 1916

In fact (big history nerd fact coming up) no confirmation hearings were held by the Senate on any Supreme Court nominees until 1916, when President Woodrow Wilson nominated Louis Brandeis, one of the big legal geniuses of all time, to serve on the high court.

Some say the fact that Brandeis was the first Jewish nominee had something to do with it. Brandeis wasn’t just Jewish, he was a huge leader of Zionism in America. He was also notoriously progressive. But, in any event, nominee Brandeis didn’t even appear at the hearings that the Senate held to consider his Supreme nomination. Other witnesses were questioned about Brandeis, but not the nominee. Brandeis was confirmed.

No, the first Supreme nominee ever to appear at a hearing on his nomination was Felix Frankfurter (he was the second Jewish nominee, and was also considered controversial because he had publicly argued for a pardon of the famous anarchists Sacco and Vanzetti).

Now we’re up to 1939, which means that for about two-thirds of constitutional history, no Supreme nominee answered congressional questions about his constitutional thinking.

First to show up

In 1939, Frankfurter, then a Harvard Law professor, did set the precedent of showing up for a Senate confirmation hearing on his own nomination. But in response to most questions he replied only that he had an extensive public record and he would stand on that record rather than reply to specific questions that the Judiciary Committee members wanted to ask. The committee, and ultimately the Senate, confirmed him anyway, on a voice vote.

Oh, yeah. A voice vote. In fact, up until the early 1960s (in other words for the first three-fourths of constitutional history) the great majority of Supreme Court nominees were confirmed on voice votes, indicating that there was not enough controversy or opposition to bother taking a recorded aye-or-nay, senator-by-senator vote.

The turning point may have been the case of Thurgood Marshall, the first black nominee, chosen by Lyndon Johnson in 1967. There was significant opposition to Marshall. In addition to his race, Marshall was prominent as a civil rights lawyer challenging racial segregation in landmark cases like Brown v. the School Board (1954). But Marshall was so clearly qualified, and LBJ was so good at Senate mechanics, that, despite what controversy may have hung in the air, Marshall ended up being confirmed by an overwhelming 69-11 margin, on a recorded (not a voice) vote.

No more voice-vote approvals

Since then, no Supreme Court nominee has ever been approved on a voice vote. You could say the end of voice votes signified the start of the new era of partisan battles over Supreme Court nominees, but that too would be an oversimplification.

Two of Richard Nixon’s nominees, Clement Haynsworth and G. Harrold Carswell, were rejected, mostly on civil rights grounds, although neither vote broke down neatly along partisan lines. But three other Nixon Supreme Court nominees were approved by overwhelming bipartisan majorities.

Ronald Regan had three nominees approved by unanimous votes, but two others who faced significant opposition, and one of those, Judge Robert Bork, was rejected. Still, Bork’s replacement, the just-now-retiring Anthony Kennedy, was confirmed 97-0, in 1988.

Try to imagine, in today’s climate, if the Kavanaugh nomination happens to fail, that the current incumbent would find a second nominee who would be approved unanimously. I, for one, can’t imagine it.

The new normal

The new normal, in which most Supreme Court nominees get overwhelming support from the president’s party but significant opposition from the other party, seemed to take real shape during the George W. Bush administration.

Bush’s successor, Barack Obama, got two nominees confirmed, and both of them got some Republican votes, but the majority of Senate Republicans voted nay (31 nay votes against Sonia Sotomayor, 37 against Elena Kagan). We were well on our way to the new normal.

Then, in Obama’s last year, when the sudden death of Justice Antonin Scalia created a vacancy and Obama nominated a highly qualified replacement, Merrick Garland, Republican Senate leader Mitch McConnell, claiming a highly dubious tradition of refusing to consider appointments in an election year, prevented Garland from even getting a committee hearing. If the old less-partisan normal wasn’t already toast, that chapter toasted it.

We can’t say for sure what the new new normal will be, but it is clearly a lot closer to party-line voting than ever before.

Forty-five out of 48 Senate Democrats voted against the first Trump appointee, Neil Gorsuch, and the three Dems who voted to confirm him (Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana) all represent red states, which gives them special reasons to go along with the Supreme Court nominees of Republican presidents. But even without the three Red State Democrats, Gorsuch had enough votes just from Republicans to confirm him.

The likelihood this time

Most Democrats will almost certainly vote against Kavanaugh (again possibly without Heitkamp, Manchin and Donnelly). Almost all Republicans (with the possible exception of the two most moderate Republicans Susan Collins of Maine and Lisa Murkowski of Alaska) will vote to confirm him. In other words, there is now a party line on all such nominations and in the current case at least 95 senators will vote their party line. There’s nothing like that in the older history, but it represents well the new normal.

From here, it’s easy to imagine a system in which any president whose party doesn’t also control 50 Senate seats will be unable to get any justices confirmed. Or, one can imagine, the appointment would have to be negotiated in advance between the president of one party and the Senate majority of the other. Or perhaps appointments will have to be packaged in pairs, so each party gets one.

I’m just making up these possibilities. But the idea that if the president nominates a qualified lawyer with no scandalous background, he or she will be confirmed by an overwhelming bipartisan vote (or, ha-ha, a voice vote) are kinda over. By the way, the Constitution does not specify that you have to have a law degree to serve on the Supreme Court.

Comments (20)

  1. Submitted by Ron Gotzman on 07/12/2018 - 09:04 am.

    In Brett K’s America……”

    Since SCOTUS having hearings on a nominee is relatively recent, how recent our the announcements of the minority party Senators proclaiming how they will vote on the nominee and associating all kinds of “Lies” about the nominee the day of the announcement, well before hearings are even scheduled?

  2. Submitted by Paul Brandon on 07/12/2018 - 09:16 am.

    The Constitution

    is rather vague on the appointment of judges.
    It says more about their function, particularly in the context of impeachment.

  3. Submitted by Hiram Foster on 07/12/2018 - 11:18 am.

    A signal

    I think there is a sense among the wiser justices, particularly Roberts, that the Supreme Court is at risk of going too far. There is historical precedent for this. As a liberal, what comes to mind for me most immediately, is the Supreme Court of the 1930’s when a conservative court stood in the way of FDR’s New Deal. The response was a proposal to pack the court. That didn’t happen, but for several reasons, I am told, the court backed away from it’s role in opposition to the president. I am sure my conservative friends would point to the Warren Court as one that overreached, a reasonable view, but not my own.

    For me personally, the Roberts court has crossed several legal, political, and moral lines. Gore v. Bush in which the court intervened in an election to confirm a minority president was a risky move for the prestige of the court. Even worse in it’s way, was the active legislative role the court took in the health care debate. The Constitution says literally nothing about health policy implemented 230 years after the adjournment of the convention. And the most recent problem for me was the court’s upholding of the Muslim, a clear case where the court put their own parochial interests ahead of the good of the nation. It’s no wonder CJ Roberts is alarmed.

    • Submitted by RB Holbrook on 07/12/2018 - 01:06 pm.

      Shelby County

      The Shelby County case was legislating from the bench in defiance of the very clear language of the 15th Amendment.

      So much for textualism

      • Submitted by Hiram Foster on 07/12/2018 - 03:34 pm.

        Fear

        I can tell you it’s scary. I am scared. While it was an activist court that said the state could could not regulate child labor, it was also an activist court that said schools could not discriminate. It was an activist court that states could not dictate who people love or deny the respect committed relationships deserve.

        But the fact is, we have a president who is incompetent, and unfit for office who furthermore was not elected by the American people who chose someone else by a substantial margin. We need to consider in these perilous times whether we can afford to allow such a man to dictate, through a legislative oriented judiciary, legal, economic and social policy for the next forty years.

    • Submitted by Tom Crain on 07/16/2018 - 11:30 am.

      Your faith in Roberts may be unjustified

      In the ‘Muslim Ban’ case, for example, it was Roberts himself who in the 5-4 opinion wrote the opinion of the court finding that Trump’s travel restriction fell “squarely” within the president’s authority. If that finding was a problem for you, you may be unwise to put your faith in Roberts as check on the right-ward movement of SC over the next 30 years.

  4. Submitted by Curtis Senker on 07/12/2018 - 05:40 pm.

    When you have 1/2 of the population harboring a dream for America that is in direct opposition to the values and traditions that built it, we have moved past the point where anyone who has authority over the entire country will ever be afforded that authority without a fight.

    This new norm is nothing more than the acknowledgement of the obvious and the common sense practice for managing it short of all out civil war.

    • Submitted by Paul Brandon on 07/13/2018 - 10:09 am.

      Suggestion

      Read the history of the American ‘revolution’, which was not really a revolution. The main question was economic — who would determine taxes. This had little effect on the common citizen. Much of our law is based on British Common Law, and the same people actually ran the government after the Revolution as before it (the ‘deep state’, if you wish).
      The country was pretty well split on allegiance to the British crown, with many people moving to Canada as as result.
      That’s why (unlike the parliamentary systems typical of democracies) we have had a two party political system for much of our history.

      • Submitted by Curtis Senker on 07/13/2018 - 05:06 pm.

        I fail to see how any of that has anything to do with our SCOTUS, or the evolving manner in which it is seated.

        Well, other than Canada being a viable alternative for those who don’t like it.

  5. Submitted by Tom Anderson on 07/12/2018 - 09:35 pm.

    Senate vote now!

    Now matter how long the hearings, the votes are already decided. Save all the time, trouble, and expense and just vote next week.

    • Submitted by Paul Brandon on 07/13/2018 - 10:11 am.

      Most of the votes

      may be decided already, but it’s close enough so that a few (five by most counts) still uncertain swing votes could determine the outcome.

  6. Submitted by Hiram Foster on 07/13/2018 - 10:17 am.

    Demonstrations

    What is going on here is an attempt to reinforce the idea that what is happening to us is normal. We are told elections have consequences, despite the fact that one of the consequences of them isn’t that the people who win them take office. The nomination hearing we are looking forward to is a form of Noh play, where everyone hides their identities behind masks. A ritual that conceals the reality that something terrible is happening.

    • Submitted by RB Holbrook on 07/13/2018 - 12:50 pm.

      Revealing Identities

      The hearings are one way of bringing home the fact that elections do have consequences. While many of us think of politics as a time to vote or not vote, and then an extended freak show the rest of the time, it’s still important to be reminded that the freak show is always about what goes on outside the carnival, and to the people standing around outside.

      One of those consequences is the makeup of the judiciary. If Trump’s advisers* are directing him to reappoint various incarnations of the late Justice Peckham, we should know that. If some members of the Senate are going to vote against his confirmation, let them show the public why.

      We know elections have consequences. Now, what are the exact consequences that we face?

      *Although he’s a stable genius, I don’t think Trump has either the brains or the focus needed to come up with a coherent plan for the judiciary. The very good people at the Federalist Society are pulling those particular strings for him.

  7. Submitted by Hiram Foster on 07/14/2018 - 06:20 am.

    Consequesnces

    The hearings are one way of bringing home the fact that elections do have consequences.

    Surely elections do have consequences, but not the ones they should. Hillary won the election by three million votes, votes that were literally thrown away. During election season, people often tell me their votes don’t matter. Given the outcome of the 2016 election, what am I to say to that? In

    The fact is times have changed. We are now putting people whose careers are entirely political, who are chosen to pursue a very specific political agenda. In this case, the nominees are chosen by and unfit and illegitimate president. Is the assurance that elections have consequences, even when the votes are ignored enough of a rationale to allow this president to set the court’s agenda for forty years?

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