Cross-Examination April 2005

Confirmation Class

Most of what we learn from confirmation hearings for a Supreme Court chief justice will be misleading or irrelevant
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The Senate will soon need to gear up to hold confirmation proceedings for a new chief justice of the United States. Any advice for the Judiciary Committee?

Oh, just skip them. Unless President Bush commits an act of true statesmanship in nominating the next head of the federal judiciary, the confirmation process is going to be an ugly spectacle. Democrats will wax indignant about a "rollback" of the hard-won gains of the civil-rights movement—indeed, of our fundamental rights more generally. Republicans will whip themselves into a frenzy over the impropriety of opposing nominees because of their "ideology." Some poor nominee will have his or her name dragged through the mud. If the Democrats successfully filibuster, we may have to repeat the whole process with another candidate. And after all the fuss, Bush will get what he wants anyway: a conservative chief justice. Why don't we dispense with the song and dance?

Are you serious?

Almost. The Constitution requires that the Senate offer advice and consent on nominees, so there has to be some advising and consenting. And the Senate acts as a potentially important check on presidential power. The trouble is that there's no reason to be confident that the probing will prove valuable. In fact, looking back at the six most recent chief justices, one is struck by how little light the Senate proceedings shed, either on the sort of justices they would be or on the defining issues they would face. The Senate never gets it right.

That's a bold claim. How do you justify it?

Start, for example, with Charles Evans Hughes, whom Herbert Hoover named chief justice in 1930. Hughes had been a justice before, but had stepped down in 1916 to run for president against Woodrow Wilson. And he had spent the intervening years as, among other things, the country's leading advocate before the Supreme Court, representing big business during an era of great (and now discredited) judicial solicitude for its interests. Hughes was undeniably well qualified for the job, but his nomination became the focus of an intense, and very modern-seeming, ideological dispute. Progressives of both parties opposed his nomination, because they did not want to strengthen the conservative majority on the Court or to bolster its enthusiasm for expanding property rights and restraining government regulation. As William E. Borah, a Republican from Idaho, put it on the Senate floor, opponents objected to "placing upon the court as Chief Justice one whose views are known upon these vital and important questions and whose views, in my opinion, however sincerely entertained, are not views which ought to be incorporated in and made a permanent part of our legal and economic system."

Hughes, to be sure, was no liberal, but his opponents turned out to have seriously misjudged him. After winning confirmation by a vote of 52 to 26, Hughes guided the Court out of its era of conservative activism: by the time he retired, in 1941, the Court had backed away from its overly aggressive scrutiny of government regulation. And his leadership was crucial in defeating Franklin D. Roosevelt's court-packing scheme as well. He is today remembered as one of America's great chief justices.

Okay, so maybe the Senate debate on Hughes turned out to be largely irrelevant. But that's just one example.

The two chief justices who followed Hughes actually sailed through with no confirmation debate at all, so we didn't learn anything whatsoever in the process. The transcript of the judiciary subcommittee's hearing for Harlan F. Stone, who was confirmed just before America became engulfed in World War II, is only two pages long;nobody in the country asked to testify against him. The nomination of Fred Vinson, who succeeded Stone in 1946, left scarcely more of a record. Both men were confirmed within days.

But what about the famously liberal Earl Warren? There must have been objections to him.

Indeed there were—but mostly for what turned out to be the wrong reasons. Dwight Eisenhower installed Warren, then the governor of California, on the Court temporarily by recess appointment—a common procedure at the time that would be unthinkable today. But Warren's confirmation for the permanent job was delayed for several months by the chairman of the Judiciary Committee, who was irritated at the White House over unrelated matters. Consequently, the committee—encouraged by southern senators who feared that Warren would help overturn segregation—heard scurrilous ethics charges against him (in one instance from a fugitive from justice) and even prompted an FBI investigation. It also heard from a liberal interest group called the California and National Institute of Social Welfare, which charged that Warren had a "much too casual concern for the American Constitution" and that his "22 year career as a prosecuting attorney" had "habituated him to certain attitudes towards the rights of the individual which render him unfit to be the custodian of the Constitution of the United States." These are comments, remember, about a man who went on to lead the Court through its greatest period of liberal and civil-libertarian energy. (As it turned out, McCarthyite groups, which testified against Warren's confirmation because he had vetoed legislation requiring loyalty oaths for California teachers, had a better read on him than the liberals did. The Warren Court famously protected the First Amendment rights of Communists.)

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