Back to Bork?

A new strategy of demanding nominees' views on judicial issues ensures that the next Supreme Court nomination battle will be ugly.

By Byron York

The consensus among Supreme Court watchers these days is that one, and perhaps two, justices will retire this year, probably in the summer. The leading candidates are Chief Justice William Rehnquist, seventy-eight, who is said to be tired and ready to go, and Associate Justice Sandra Day O'Connor, seventy-two, who is believed to be eager to head home to play golf in Arizona. Although there's been a lot of guessing about whom President Bush might nominate to fill a vacancy, perhaps the more intriguing question is How big will the confirmation fight be?

Big. When it comes to judicial selection, relations between Republicans and Democrats in the Senate are more strained than they have been at any time since the Clarence Thomas hearings, in 1991. By the 2000 election the two sides appeared to have reached a kind of equilibrium of outrage. Republicans were outraged at Democrats for the way they treated nominees for federal judgeships in the later years of the Reagan Administration and during the presidency of George H.W. Bush. Democrats were outraged at Republicans for the way they treated nominees in the later years of the Clinton Administration. It seemed that the situation could hardly get worse —but then, in May of 2001, the defection of Senator James Jeffords, of Vermont, gave control of the Senate back to the Democrats, who used their new power to kill two of President Bush's appeals-court nominations. Now, with the Republicans back in control of the Senate, and the biggest judicial prize—a Supreme Court vacancy—in sight, the chances that an ugly battle will occur soon are good.

Just how ugly the fight turns out to be will depend on which justice or justices retire. If a conservative like Rehnquist leaves and the President nominates another conservative to replace him, Democrats will undoubtedly oppose the choice, but with perhaps a little less passion knowing that it will mean no change in the balance of the Court. But if a liberal like Associate Justice John Paul Stevens—who is eighty-two years old—retires, and the President nominates a conservative to replace him, it would bring about an explosive clash, as Democrats fight to protect a liberal seat.

However big the battle turns out to be, its intensity will be due only in part to the bitterness on each side, and only in part to the real philosophical differences between the parties on judicial issues. What will also shape a summer Court battle is a new movement, led by Senate Democrats, to rethink the way the Senate confirms judicial candidates. During their eighteen months in power, from June of 2001 to January of 2003, some key Democrats on the Senate Judiciary Committee sought to make the judicial nomination process more openly—and, they would say, more honestly—ideological. Frustrated by old-style confirmation hearings in which nominees refused to reveal their views on critical issues such as federalism, affirmative action, and, above all, abortion (all with the explanation that candidates should not discuss the specifics of issues that might come before them on the bench), these Democratic senators began relentlessly pressing nominees for their innermost thoughts on hot-button questions of law.

The idea of frankly ideological hearings had been kicking around legal and academic circles for years, but it became a more imminent matter on June 26, 2001, in Room 226 of the Dirksen Senate Office Building, when Senator Charles Schumer, of New York, then the chairman of the usually low-profile Subcommittee on Administrative Oversight and the Courts, called to order a hearing titled "Judicial Nominations 2001: Should Ideology Matter?" In the months before the hearing Schumer had become the committee's leading proponent of the ideological approach, and he used the session to lay a political and intellectual foundation for it.

"Legitimate considerations of ideological beliefs seem to have been driven underground," Schumer said as he opened the hearing. "It is not that we don't consider ideology; it is just that we don't talk about it openly." Schumer explained that in the past the Senate often engaged in vigorous ideological battles over nominees. In the nation's first century about one out of every four candidates for the Supreme Court was defeated by the Senate, sometimes for plainly ideological reasons. That situation changed at the end of the nineteenth century; from 1895 to 1967 only one nominee was defeated. After that a series of failed nominations culminated in the intensely ideological battle over Robert Bork's nomination, in 1987. In the poisonous aftermath of that fight senators became fearful of discussing ideology too openly.

And that, Schumer continued, turned confirmation hearings into a kind of theater in which participants discussed everything except the most important issues. "Unfortunately, this unwillingness to openly examine ideology has sometimes led senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition," Schumer said. "This, in turn, has led to an escalating war of 'gotcha' politics that, in my judgment, has warped the Senate's confirmation process and harmed the Senate's reputation."

Schumer invited three prominent liberal lawyers—Laurence Tribe, of Harvard Law School; Cass Sunstein, of the University of Chicago; and Marcia Greenberger, of the National Women's Law Center—to testify at the hearing. (Two months earlier the same three had appeared at a Democratic retreat and reportedly urged lawmakers to take an aggressive stance against Bush's judicial nominees.) Only a more assertive and openly ideological Judiciary Committee, they told the subcommittee, could stop the White House from packing the courts with doctrinaire conservatives. Democrats simply had to be tougher on Bush nominees.

Tribe made the point by mocking old-style confirmation hearings in which senators solemnly asked whether the nominee would follow the law. "Duh!" he exclaimed, as the room erupted in laughter. "'Will you uphold your oath?'" Tribe continued. "'Of course.' 'Do you believe in precedent?' 'Yes, I have seen some.' But ask a question like 'How will you go about deciding which precedents should be overturned and which shouldn't ... and what would it take to make it justifiable to overrule Roe v. Wade,' and when a nominee says, 'Oops, I can't talk about that because that might have something to do with what I will do as a judge,' it seems to me at that point you ought to really scratch your head and say, 'Of course it would have something to do with what you would do as a judge; I wouldn't be asking you otherwise.'"

In the months that followed, during confirmation hearings for more than a dozen nominees to the federal courts of appeal, Democrats took Tribe's advice, with extraordinarily effective results. The first thing they did was turn the tables on conservative Republicans, who had been fond of asking the old "Will you follow the law?" question as a way of demanding that judges pledge not to engage in judicial activism—writing decisions not firmly grounded in the original meaning of the law. Now Democrats asked the same question but with a specific edge—the law to which they wanted the nominee to pledge loyalty was Roe v. Wade. (Other issues, such as federalism and affirmative action, provoke fractious debate, but not to the extent that abortion does.) Democrats exacted promises from a variety of Bush nominees that they would faithfully follow Roe. Indeed, one could say that in a year and a half of confirmation hearings the Democrats created a whole new generation of Republican judges publicly committed to strictly enforcing Roe.

One of these is Michael McConnell, the brilliant University of Utah professor who won confirmation to the Tenth Circuit Court of Appeals. McConnell is a fervent foe of abortion (he wrote a 1998 op-ed in The Wall Street Journal titled "Roe v. Wade at 25: Still Illegitimate"), yet under repeated questioning he virtually bent over backward pledging fealty to legalized abortion. He said repeatedly that Roe is "settled law," and at one point called it "as thoroughly settled as any issue in current constitutional law."

Then Democrats pressed the issue one step further. Clearly, Bush nominees had gotten the message that one had to accept Roe to win confirmation. Most, if not all, had no problem with that; Roe, after all, is settled law, and judges on the federal courts of appeals have no authority to overturn it. But Democrats also demanded that many of the nominees—any one of whom might one day be chosen for a place on the Supreme Court—say that Roe is not only settled law but good law.

In some instances, they did that by questioning nominees closely about Griswold v. Connecticut, the 1965 Supreme Court case that established the right of privacy in the Constitution and later became the foundation for Roe. Many conservative legal scholars—and some liberals, too—believe that Griswold was poorly decided and there is no enumerated constitutional right to privacy. That, in turn, leads to serious questions about Roe. But it would be suicidal for a nominee to say so before a Democratic Judiciary Committee. Democrats knew that, of course. This is how Schumer pressed the issue during one particularly heated confirmation hearing: "It's 1965. You are sitting in the Supreme Court of the United States. Chief Justice Warren comes into your chambers with a copy of the opinion in Griswold v. Connecticut, the seminal case that held there is a right to privacy in the Constitution. He asks for your thoughts on the opinion. Now, there is no law to follow right now, but he is asking for your opinion in terms of everything that has been part of you. What do you tell him? Do you agree with the holding? Do you agree with the outcome, but get there in a different way? In other words, that there is a constitutional right to privacy, the penumbra of which extends to at least the first two trimesters of a woman's pregnancy—what do you tell [Justice Warren]?"

Schumer asked the question of Priscilla Owen, a justice on the Texas state supreme court who had been nominated to a place on the Fifth Circuit Court of Appeals. There was little if anything about Owen that would have been objectionable in an earlier, less contentious era, but some Democrats seized on rulings she had made limiting the ability of underage girls in Texas to bypass a state law that required the girls to notify one parent before getting an abortion (the law required just that the parent be notified, not that he or she give consent). Owen danced around Schumer's question rather than giving a straightforward answer. Schumer became angry. "I am not trying to surprise you," he told Owen. "My staff told the people in the Justice Department I would ask you this very question." But Owen still did not answer, possibly because she could not honestly do so in a way that would satisfy Schumer. Her nomination was defeated in the Judiciary Committee by a straight party-line vote.

If anything in the world is a sure bet, it is that Schumer will ask that question of the next Supreme Court nominee.

The appeals-court fights of 2001- 2002 might best be viewed as one long trial run for a Supreme Court confirmation. And although it is arguably true that the more ideological approach brought a greater measure of honesty to confirmation hearings, it is also true that it brought a significant amount of bloodshed. During their time in power the Democrats confirmed just seventeen of the thirty-two people President Bush nominated to positions on U.S. circuit courts of appeals (and two of these were Clinton choices whom Bush nominated as a goodwill gesture). That's a confirmation rate of 53 percent. (Those appeals-court nominations were the most controversial; confirmations of most of the President's nominees to the lower, less influential U.S. district courts were quick.) In contrast, during the six years of the Clinton presidency that Republicans controlled the Senate, forty-six of the sixty-eight people Clinton nominated for appeals-court seats were confirmed—a rate of 68 percent.

But there is a story inside those numbers. The confirmation rate for Clinton's judges dropped dramatically in his last two years in office. Virtually every President has had a similar experience, but it was especially pronounced for Clinton, whose relations with Senate Republicans had been soured by scandal and impeachment. During that time Republican senatorsmastered the art of killing nominations without actually killing them, by putting nominees in a state of limbo in which their appointments were never approved or rejected. In Clinton's final two years Republicans confirmed just 44 percent of his circuit-court nominees (although a couple of the failed nominations were made so late that they had no reasonable hope of confirmation). What the Democrats did when they regained power in 2001-2002 was, in effect, to apply the standards of Clinton's late-term presidency to George W. Bush's first years in office—normally a President's most productive for getting judicial nominees confirmed. A new, lower, benchmark was set.

That has worried some senators in both parties. Last September, when the committee met to vote on Priscilla Owen, several Republicans warned that a vote against her nomination would change the ground rules for future confirmation hearings. Senator Mitch McConnell, of Kentucky, said the committee was "passing some kind of threshold" with the Owen vote. "I'm not going to be voting, I don't think, in the future in the way I have in the past," McConnell said. "And it is important to remember in the Senate, what goes around comes around." Even the normally undemonstrative Iowa Republican Charles Grassley, who pointed out that he voted to confirm the Clinton Supreme Court nominees Ruth Bader Ginsburg and Stephen Breyer, said the judiciary committee's recent direction would change the way he votes in the future—strongly hinting that he would vote in a more openly ideological way.

Some of those comments were to be expected; at that time the Republicans were on the losing side and complaining loudly. But some Democrats worried too. In March of last year, just before the committee killed the nomination of Charles Pickering, a federal district judge in Mississippi who was up for a place on the Fifth Circuit Court of Appeals, Senator Joseph Biden, of Delaware, a former chairman of the committee, urged his fellow Democrats to examine why they were doing what they were doing. "I would be very, very, very, very, very careful of the precedent that we establish here on this vote," Biden said. He worried that if the committee rejected Pickering because of his "personal beliefs relative to a social issue," then "when we have a Republican Senate again, it will be a cold day in hell before we have anybody on the bench who is pro-choice." "We'd better be very, very, very careful," Biden continued, "for we may get what we wish for, and it may very well cause the most significant dilemma in the court that we've had in a long, long time." Then Biden, along with every other Democrat on the committee, voted against Pickering.

As Mitch McConnell said, what goes around comes around. Now there is a Republican Senate again. At least theoretically, the Republicans can confirm any Bush nominee they want (including Pickering and Owen, who have both been renominated). But Republicans have just fifty-one votes in the Senate, and the President's opponents have spent many months preparing to oppose his choice for the Supreme Court. Both sides are angry, and a high-court confirmation, never easy, will likely become a heavily ideological fight.

This article available online at:

http://www.theatlantic.com/magazine/archive/2003/03/back-to-bork/302697/