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.)

What did not arise openly in the proceedings, however, was the matter of school desegregation. Yet Brown v. Board of Education had already been argued before the high court (and in fact before Warren himself), and it would become—within less than three months of Warren's official confirmation—the defining case not only of Warren's tenure but of twentieth-century American jurisprudence. Nothing in Warren's hearings—which ended with a unanimous confirmation—remotely anticipated the revolutionary qualities of his Court. Despite the considerable energy expended by the Senate, at the end of the proceedings senators had little more idea what they were getting than they did after waving through Vinson and Stone.

But in more recent years nominees for chief justice have themselves testified before the Judiciary Committee. Hasn't this made the Senate's inquiry more enlightening?

Afraid not. Take the nomination of Warren Burger, who followed Earl Warren in 1969. Burger's hearing was full of fawning questions from Judiciary Committee members who treated this ordinary man as though he were a legal giant. They asked him no challenging questions, and they confirmed him confident that he would curtail the rights-creating enthusiasm of the Warren Court. There was no glimmer of the pomposity and mediocrity that Burger would display as chief justice, or of the imperiousness and the technical sloppiness that would so irritate his colleagues. What's more, although Burger was a conservative, the Court under his leadership saw not the ebb of Warren Court activism but its apogee. It was the Burger Court, after all, that struck down abortion laws and the death penalty—and Burger himself was part of the majority in Roe v. Wade, which remains the ultimate conservative judicial bugaboo.

Okay, but I remember the 1986 fight over William Rehnquist, and nothing about his tenure as chief justice during the Court's recent conservative resurgence has surprised me. You can't claim that the Rehnquist hearings failed to anticipate the Rehnquist Court.

Yes, I can. The Senate did hold lengthy and contentious hearings over Rehnquist. But the issues aired at those hearings had almost nothing to do with the subsequent conservatism of the Rehnquist Court. Senators spent hours quizzing Rehnquist about whether, as a Supreme Court clerk in 1954, he had opposed the Brown decision; whether he had harassed minority voters in Arizona in the 1960s; why there were restrictive covenants on properties he owned; and whether he improperly failed to recuse himself in a particular case. The overarching charges against him—prominently featured in the Democratic dissent from the committee's report on his nomination—were that he was insensitive to minorities and that black civil rights were unsafe in his hands.

Yet the rhetoric of today's liberal groups notwithstanding, the Rehnquist Court simply hasn't curtailed the gains of the civil-rights era. State-sponsored segregation and discrimination, unanimously struck down beginning half a century ago, would be unanimously rejected now as well. And though individual discrimination cases may be fiercely contested, the civil-rights laws today are particularly well defined and uncontroversial. The only major question still seriously debated is how aggressively government may seek to favor minorities through affirmative action.

On the other hand, the issues that have come to define the Rehnquist Court went almost completely unremarked in the lengthy hearings and floor debates over its chief. For example, the relationship between state and federal power came up only fleetingly—though shifting the balance of what the Court quaintly calls "our federalism" away from the national government has been one of the most important themes of Rehnquist's nearly two-decade tenure. Similarly, the Senate devoted surprisingly little attention to criminal law, which has been greatly altered by the Court's recent conservatism. In short, a senator opposing Rehnquist (who was confirmed 65—33) on the basis of those proceedings would have had a general sense of him as unacceptably conservative, but would have entirely misapprehended the likely consequences of that conservatism (which in any event was no secret even before the Senate's inquiry began).

Okay, you've convinced me: the confirmation process is useless.

Well, not entirely. On a practical level it allows the Senate to weed out an ethically impaired candidate such as Abe Fortas, whose nomination to replace Earl Warren was blocked over allegations of financial impropriety and cronyism. And the Senate's involvement in confirming nominees preserves the legitimacy of the Court itself, ensuring that it does not become a wholly owned subsidiary of the executive branch.

Also, whether or not the hearings prove informative, the Senate's ability to stop a nominee provides a check on the president. President Bush knows that he'll have a fight on his hands if he sends up a die-hard right-winger. And although it's impossible to divine from the proceedings how a given justice will evolve over time, or what issues will define his tenure, the president's awareness of the possibility of Senate rejectionencourages accommodation and consensus. The major value of the Senate's proceedings, in other words, lies not in anything we might learn from them—which, if history is any guide, will be negligible—but in the president's knowledge that they happen at all.

Benjamin Wittes is an editorial writer at The Washington Post.
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