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What Makes a Good Supreme Court Justice?
Evaluative Criteria in Confirmation Debates
I. Introduction
The process for confirming Supreme Court Justices in the United States, in
addition to ensuring that nominees are acceptable to a majority of Senators, also provides
a forum for clarifying and illuminating understandings of the Justices’ roles and of the
task of interpreting the Constitution. This confirmation process appears to many
observers to have undergone dramatic changes during the past three decades. Some
critics of the confirmation process lament that it has become too “political,” meaning that
the participants seek to appoint justices who will support particular policies rather than
justices who are competent and fair, and that this diminishes the Court’s independence.
Other observers maintain that political motivations have always played a large role in the
confirmation process, and that it is other factors, such as the mechanics of the process and
the style of news coverage, that have changed.
In this paper I join the conversation about the confirmation process by examining
a limited slice of the public discourse surrounding confirmations. Using both quantitative
and qualitative analysis, I examine New York Times coverage of the debates about Louis
Brandeis’s nomination to be Associate Justice in 1916, Abe Fortas’s nomination to be
Chief Justice in 1968, and Clarence Thomas’s nomination to be Associate Justice in
1991. I am interested in the confirmation debates because they are instances in which the
tension between law and politics in the role of a judge is illuminated. In a legal
framework, Judges are assumed to impartially interpret the Constitution to come up with
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objectively correct answers to legal questions. In a political framework, Justices are
assumed to have particular outcomes or agendas in mind.
The argument of this paper is that, while the Supreme Court confirmation process
has always been political, the participants in the national debates about confirmations
have become increasingly willing to articulate their claims in political terms. The rhetoric
of confirmation debates has shifted away from a logic of impartiality and towards a logic
of ideology. Although claims to impartiality often mask ideological motives, candidates’
ideological leanings are increasingly referenced in arguments made by their supporters
and detractors.
II. The Politics of the Confirmation Process
Accounts of the Changes: Interpretations of the Bork Battle
Many accounts of changes in the Supreme Court confirmation process identify the
failed nomination of Robert Bork as a watershed. President Reagan nominated Robert
Bork to the Supreme Court in the late spring of 1987, and the hearings themselves did not
take place until October of that year. During the intervening summer, civil rights groups,
feminist groups, consumer rights groups, unions, and other organizations waged an
intensive campaign to convince the country and the Senate that Robert Bork was so
conservative as to be outside the judicial mainstream. Over 300 groups campaigned
against Bork and over 100 groups campaigned in favor of him. Ronald Reagan spoke
publicly on Bork’s behalf over thirty times -- an unprecedented number of public
statements made by a President about a Supreme Court nominee -- and the White House
lobbied Senators relentlessly. During the hearings, Bork was questioned about his method
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of Constitutional interpretation and his views on various past Supreme Court cases, and
he provided lengthy and detailed answers to these questions. His nomination was then
voted down in the Senate. The divergent understandings of Bork battle are exemplified
by the accounts of James Carey and Michael Pertschuk and Wendy Schaetzel. These
accounts illuminate the different ways of understanding the role of public debate, media
scrutiny, and ideology-based questioning in the confirmation process.
James Carey, in “Political Ritual on Television: Episodes in the History of
Shame, Degradation, and Excommunication,” characterizes the Bork hearings and the
accompanying public debate as a “collective social rite” in which Robert Bork was
ritually shamed, excommunicated, and degraded. 1 Carey argues that, in considering
Bork’s defeat, we should look beyond the battle of political ideologies and focus on the
“inherent drama and symbolic efficacy of the process,” which accrued largely because
the event was televised.2 Drawing on Katz and Dayan’s concept of media events3, Carey
1
James Carey, “Political Ritual on Television – Episodes in the History of Shame,
Degradation, and Ex-Communication” in James Curran and Tamar Liebes (Eds), Media
and Public: Rethinking the Part Played by People in the Flow of Mass Communication
(Routledge: 1998), 42.
2
Carey, 52. This contention that television, more than political ideology, was the primary
shaping force for this event, points to one of several possible ways of explaining why the
confirmation process has changed. Although I agree that the televised nature of the
hearings helped shape the process in some ways, I do not agree with Carey’s argument
that television was the primary shaping factor or even a major shaping factor. To cite just
one problem with this argument, Abe Fortas’s 1968 confirmation hearings were also
dramatic and symbolic, yet were not televised. No confirmation hearings were televised
until Sandra Day O’Connor’s in 1981.
3
Carey, 53. Carey argues that televised confirmation battles share many characteristics of
Dayan and Katz’ media events, particularly their role as collective social rites through
which society celebrates its core, sacred values. However, Carey contends that these
confirmation battles form part of a group of televised “quasi-judicial events” such as the
Iran-Contra hearings and the House UnAmerican Activities hearings that do not fit into
Dayan and Katz’ classificatory scheme of contests, conquests and coronations. Carey
characterizes these televised, quasi-judicial events as chaotic, ungoverned, frightening,
3
theorizes that the Bork hearings served to define the “permissible range of social
discourse” in America and to mark out the consequences for transgressing this range.4
This was accomplished through the ritual demotion of Robert Bork from high status to
low status, sacred to profane. In other words, by defining Bork as outside the norm, and
thereby symbolically exiling him, the event worked to display and define America’s core
values. Carey argues that, although these defining rituals are necessary for all societies,
confirmation hearings are an inappropriate forum for them because they do not present a
ritualized path to reconciliation.5 While the media events discussed by Dayan and Katz
are fundamentally integrative, confirmation hearings, according to Carey, produce
dissensus and “exercises in social cruelty.”6
Carey’s argument carries implications for thinking about the role of public debate
in the confirmation process and the range of legitimate criteria for assessing nominees.
By describing the Bork hearings as functioning primarily to ritually degrade the nominee,
Carey casts doubt on the legitimacy of the stated goals and claims of the groups opposing
Bork. By using terms such as “shame” and “degradation,” and by grouping this
confirmation battle with “episodes of systematic and sanctioned misanthropy” and “witch
hunts,”7 Carey paints a picture of Bork’s opponents as engaged in a cruel, irrational act of
mob politics, rather than as carrying out a reasonable, legitimate campaign for social
justice. Finally, by arguing that the confirmation hearings were an inappropriate forum
bitter, and intense. Most importantly, he argues, these events “implant a fissure” rather
than “healing a breach,” See also Daniel Dayan and Elihu Katz, Media Events – The Live
Broadcasting of History (Harvard University Press: 1992), 4-9.
4
Carey, 47, 65.
5
Carey, 62.
6
Carey, 66.
7
Carey, 42.
4
for the process he describes, Carey implies that the hearings were somehow vulgar and
unseemly.
Michael Pertschuk and Wendy Schaetzel’s book The People Rising: The
Campaign Against the Bork Nomination presents a very different interpretation of the
Bork hearings and debate. Pertschuk and Schaetzel argue that Bork’s opponents were
engaged in “high democracy, not low politics,” and that their efforts were a necessary and
moderate response to Reagan’s politicizing of the judiciary.8 They contend that the
opponents’ claims were based on a sophisticated understanding of the underlying legal
issues and a reasoned, justified repudiation of Bork’s constitutional vision.9 They also
point out that characterizing the debate and its participants as “inappropriate” serves to
obscure the legitimate questions of ideology and Constitutional interpretation that were at
issue. The People Rising is not a theoretical treatise, but, like Carey’s piece, it contains
underlying assumptions about how the confirmation process should function. Pertschuk
and Schaetzel’s reading of the event is rooted in two fundamental assumptions: first, that
Supreme Court nominees should be closely scrutinized by the press and citizens’ groups,
and second, that a nominee’s ideology, method of Constitutional interpretation, and views
on specific Supreme Court cases are legitimate criteria for evaluating Supreme Court
nominees.
After Bork’s defeat, many observers called for reform of the process. The 20th
Century Fund, a nonpartisan foundation that supports and organizes public policy
research, brought together a task force of academics, lawyers, and government officials to
8
Michael Pertschuk and Wendy Schaetzel, The People Rising: The Campaign Against
the Bork Nomination (Thunder’s Mouth Press: 1989). 7.
9
Pertschuk and Schaetzel, 20.
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assess the confirmation process and submit a proposal for changes. The task force
findings, published in 1988, were sharply critical of the process. They concluded that the
process had become too visible, that it was functioning too much like an election, and
that the various participants were using the hearings to promote their own agendas. The
task force made four recommendations for fixing the confirmation process. First, they
said that it should be “depoliticized” by minimizing the potential for participants to use
the hearings to pursue their own agendas and promote themselves. Second, they said that
nominees should not be required to testify in person during the Senate Judiciary
Committee’s hearings on confirmation. Third, they said that if it was absolutely necessary
for nominees to testify, Senators should be prohibited from asking the nominees about
how they would rule on specific issues. Fourth, they said that the decision about whether
or not to confirm a nominee should be based on a nominee’s written record and the
testimony of legal experts as to his or her competence.10
These recommendations were controversial, even among the members of the task
force. From the ten-member task force, one member dissented from all of these
conclusions, another dissented from recommendations two and four, and another
dissented from the conclusion that the process functions too much like an election.11
These disagreements, and the divergence between Carey and Pertschuk/Schaetzel,
indicate a lack of consensus in normative visions of the confirmation process. However,
underlying these disagreements is a fundamental understanding that the confirmation
process changed in important ways with the Bork battle: publicity and interest group
10
Judicial Roulette -- Report of the Twentieth Century Fund Task Force on Judicial
Selection (Priority Press Publications: 1988), 9-11.
11
Judicial Roulette, 8-11.
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participation reached unprecedented levels and the nominee’s expected future decisions
from the bench, rather than his or her legal competence, became the main criteria used for
assessment.
Putting the Changes in Context: Political Motivations, Participation, and Publicity
John Anthony Maltese, in The Selling of Supreme Court Nominees, argues that
reformers who call for a return to emphasizing legal competence in evaluating nominees
display a desire to return to an idealized time that never existed.12 He contends that many
critics of the process falsely assume that considerations of nominee’s ideologies are new
to Supreme Court confirmations, when they are in fact as old as the process itself. What
has changed, he says, is that the process is now more public and incorporates more
participants.
Maltese agrees that the publicity and the participation of interest groups did reach
unprecedented levels during the Bork battle. However, his argument suggests that these
changes need to be viewed in historical context. These changes do not indicate a radical
break with the past, but rather are a manifestation of developments that have been
unfolding since the end of the Civil War. In fact, Maltese contends that the first nominee
to be “borked,” or defeated by a lobbying and public relations campaign based on his
12
John Anthony Maltese, The Selling of Supreme Court Nominees (Johns Hopkins
University Press: 1995). Maltese cites the 20th Century Fund task force report as an
example of a report that proposes that confirmation decisions should be based on legal
qualifications, and this is an accurate characterization. However, the background paper
written by one of the task force members and appended to the task force report suggests
that the group was considerably less naïve regarding the history of Supreme Court
confirmations than Maltese suggests. The background paper demonstrates a good deal of
cognizance – although perhaps not as much cognizance as Maltese demonstrates – that
the confirmation process has always been political. Somehow, though, this insight was
not translated into the task force’s proposals for reform.
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political views, was John Rutledge, whose nomination to be Chief Justice was rejected by
the Senate in 1795 largely because of his public opposition to the recently signed Jay
Treaty.13 Federalist newspapers, which supported the treaty, attacked Rutledge for his
opinion, asserted that he was not dignified enough for the office of Chief Justice, and
called for an inquiry into his personal affairs. Federalist Alexander Hamilton lobbied
Senators to reject Rutledge, alleging that he was insane.14 Rutledge was rejected by the
Senate in a 14-10 vote. Maltese argues that, in its incorporation of name-calling, public
appeals, charges of personal impropriety, and political partisanship, the battle over John
Rutledge displayed many of the characteristics that contemporary observers have claimed
are recent and dangerous developments. He shows that confirmations throughout United
States history have displayed these characteristics. 15
Article II Section 2 of the Constitution gives the President the power to appoint
Supreme Court Justices, but dictates that he must do so with the “advise and consent” of
the Senate.16 What this has come to mean is that the President nominates a candidate, and
the Senate screens the President’s choices and votes to confirm or reject them. Maltese
shows that, because the Constitution provides no clear guidelines on what “advice and
consent” means or how much power it accords to the Senate, the mechanics of the
confirmation process have often been debated, and have been shaped by political norms
rather than following a clear rule.17 Different political camps have advocated a strong
Senate role at different times, depending on what each camp would have to gain from this
13
Maltese, 26.
Maltese, 30
15
Maltese, 31
16
The Constitution of the United States, Thirteenth Edition, 1991. Published by the
Commission on the Bicentennial of the United States Constitution, Washington, D.C.
17
Maltese, 18.
14
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state of affairs. For example, during the first few decades of the 20th century, economic
conservatives dominated the Supreme Court and liberals and progressives espoused
vigilant screening of nominees by the Senate, while conservative Senators advocated
deference to the President’s judicial choices. In the 1950s and 1960s, when the liberal
Warren Court infuriated conservatives, the political camps switched arguments, and
conservatives advocated vigilant screening by the Senate, while liberals advocated
deference to the President.18
What this demonstrates, according to Maltese, is that the confirmation process has
always been an inherently political process, shaped by “changing political dynamics,
contemporary concerns, and the balance of power.”19 However, Maltese concedes that
some aspects of the confirmation process have changed dramatically in the late 20th
century. What is new, Maltese says, is that the process, once comprised of government
officials debating with each other, now includes a wider variety of participants, and these
participants – both old and new -- have increasingly oriented their appeals towards
mobilizing public opinion.
Maltese attributes these changes primarily to institutional changes that have given
interest groups more leverage in the confirmation process and have made public opinion
more important to governance. Until 1913, Senators were chosen by state legislatures
rather than by popular elections, so the threat of electoral retaliation for voting to confirm
unpopular nominees was not immediate. The ratification of the 17th Amendment in 1913
provided for direct, popular election of Senators, thus giving interest groups a way to
18
19
Maltese, 21.
Maltese, 22.
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pressure Senators. 20 Until 1929, Senate debate about Supreme Court confirmations was
closed to the public unless two thirds of Senators voted to open it and there was no rollcall vote, so it was difficult for constituents to find out how specific Senators had voted.
In 1929, Senate rule changes mandated that debate on Supreme Court confirmations be
open to the public, making Senators more accountable for their decisions.21
Maltese argues that as the participants such as interest groups learned that they
could influence Senators by mobilizing public opinion, they began making increasingly
frequent public appeals regarding confirmations. Additionally, although they previously
had maintained scrupulous public silences during confirmation debates, Presidents began
in the 20th Century to “go public” to make their cases. Maltese explains that the founders
were afraid of too much “pure” or “direct” democracy, and believed that government,
particularly the Supreme Court, should be “insulated from the whims of public opinion.”
However, the 20th century produced new interpretations of the Constitutional order, and
Presidents increasingly used public appeals to gain support for their policies. Political
scientist Sam Kernell has elaborated this model of Presidential power, which he calls
“going public.” In this framework, Presidential power is equated with the ability to shape
20
This claim of Maltese’s rests on two assumptions: first, that Senators base their actions
solely on their calculations regarding how to get the most votes, and second, that
Senators’ votes on Supreme Court candidates play a large role in citizens’ choices of
Senators. These claims can both be contested. It is likely that Senators are motivated in
their actions by a variety of factors, including party loyalty, personal convictions, and
experience with particular issues. Voters, too, are probably influenced in their choices of
Senators by multiple factors, and may not be swayed by, or even know about, Senators’
decisions about Supreme Court confirmations. These caveats do not completely negate
Maltese’s claim that the 17th Amendment had an effect on confirmation battles. Rather,
they temper it by suggesting that a combination of factors shaped these battles.
21
Maltese, 37
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public opinion, and the result is an unending campaign.22 Nominees have also
increasingly been called upon to testify at their hearings and have personally lobbied
Senators and met with journalists.
Maltese’s account provides a useful guide for understanding the confirmation
process and the ways in which it has changed. However, I believe that the entrance of
new participants such as interest groups and the increasingly public orientation of the
process do not tell the only story that there is to tell. By focusing on the language and
rhetorical framing in the struggle over opinion, I hope to supplement Maltese’s account
and highlight the ways in which people have understood the role of Supreme Court
Justices.
III. Conceptual Framework: Ideology and Impartiality
To analyze the arguments made about the suitability of particular candidates to be
Supreme Court Justices, I looked at New York Times coverage of the confirmation battles
over Louis Brandeis, Abe Fortas, and Clarence Thomas. The results of this study suggest
that the political motivations in confirmations are increasingly articulated as such.
Arguments reported by the New York Times about the suitability of particular candidates
have demonstrated an increasing willingness on the part of debate participants to use the
candidate’s ideology as a criterion for assessment.
The significance of this issue stems from the fact that arguments advanced during
confirmation debates contain implicit assumptions about what the role of the Justices
should be, and correspond to different understandings of how the Supreme Court should
22
Maltese, 113
11
function in a democracy. The argument that nominees should be evaluated based on their
competence and temperament suggests that a Justice’s role is to reach the correct answer
to each Constitutional question. This view is articulated by Alexander Hamilton, who
argues in the Federalist Papers that judges should not be in a position that encourages
them to “consult popularity” and that their position must “justify a reliance that nothing
… be consulted but the Constitution and the laws.”23 The argument that nominees should
be evaluated based on their views about specific cases suggests that there are different
ways of approaching each Constitutional question. Furthermore, some critics have argued
that the democratic goal of government accountability is subverted by the existence of
such a powerful institution over which the electorate has no control.24 From this point of
view, citizens can and should seek to find out how what kinds of decisions each nominee
is likely reach.25
Maltese describes these two ways of imagining Justices’ roles:
In theory, impartial judges objectively applying the law according
to set standards of interpretation should all reach the same “correct”
outcome in cases that come before them. But, in practice, there are very
different views among judges about how to interpret legal texts. Moreover,
judges are human beings who are influenced, at least in part, by their
backgrounds, personal predilections, and judicial philosophies. Quite
simply, different judges will reach different conclusions when confronted
with the same case.26
23
Alexander Hamilton, “The Federalist No. 78: Judicial Tenure and Review,” in Roy P.
Fairfield, ed., The Federalist Papers (Anchor Books: 1961), 232.
24
This position is proposed by Robert Entman and David Paletz in Media/Power/Politics
(Free Press: 1991), in which they argue that the media should scrutinize the Supreme
Court more closely in order to break down its elite, insulated position.
25
Pertschuk and Schaetzel
26
Maltese, 2.
12
Each of these two cases points to a different standard for confirming justices. In
the theoretical scenario, the most suitable candidate would be one who is able to put his
or her personal views aside, to be essentially interest-less. Helpful qualities according to
this standard would include intelligence and experience as a judge or a lawyer – qualities
that will help one reach “correct” decisions and that are not known to slant one’s point of
view in a particular direction. In the real-life scenario, the ideal candidate would be one
who supports the political or philosophical views of whoever is making the evaluation.
Helpful qualities according to this standard would include particular methods of
Constitutional interpretation and opinions about issues likely to come before the court. In
this paper, I use the terms “politics” and “impartiality” to indicate these two general
categories for thinking about the role of justices. I group politics and ideology together
and group impartiality and judicial temperament together.
Although Maltese designates one scenario as “theory” and the other as “practice,”
both scenarios’ implied standards of evaluation play roles in confirmation discourse.
Because law is an abstract system of rules that governs concrete events, it can be viewed
as sharing some general principles with science. Both law and science include standards
of evidence and approved procedures for determining the truth. Judges, like scientists,
are expected to at least act as though they are dispassionate and above politics. Thus, a
debate about who is suitable to be a Supreme Court Justice implicitly includes questions
about who is impartial and how impartiality is defined. Confirmation battles bring to light
the tension between the standard of impartiality and the standard of ideology.
IV. Methodology
13
In order to trace the standards of evaluation in confirmation debates, I analyzed
New York Times coverage of three confirmation battles. My study is both defined and
constrained by three factors: sources, cases and method. Because the New York Times
was my only source, I analyzed the discourse through the prism of this paper’s
journalistic practices. I have made the assumption here that New York Times journalists
report the opinions of people or organizations who are understood to have a stake in the
outcome of confirmations and whose opinions are understood to matter in some way. I
am also making the assumption that the range of statements about a particular nominee
reported by the Times will loosely correspond to the range of evaluative standards
employed by participants in that confirmation battle. It is possible that some aspects of
the changes in confirmation discourse that I identify result in part from changes in
journalistic practices rather than from dynamics specific to the confirmation process.
However, I believe it is more likely that journalism and Supreme Court confirmations
have evolved together.
The second factor defining and constraining my study is the three cases I have
chosen to examine. I chose the nominations of Brandeis, Fortas and Thomas because
each was opposed by enough people to provoke genuine debate about the qualifications
necessary to be a Supreme Court Justice. Additionally, the grouping of these three
allowed me to look at the span of the 20th century and to think about changes occurring
over this time period. Finally, because Thomas is black and Brandeis and Fortas were
Jewish, their nominations present the possibility of looking at the role that minority group
membership plays in arguments made about nominees. This topic necessitates much more
careful and in-depth analysis than I can give it here, but it is intertwined with the issues I
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address in the discussion below. Because the nominations I chose were all extremely
contentious, my findings may not be generalizable to nominations that elicit little
controversy. It may be fruitful in the future to consider non-contentious cases.
The third factor defining and limiting my study is the content analysis method,
which produced my quantitative data. Content analysis counts instances of specific types
of statements without examining the different possible meanings of and motivations for
these statements. I have supplemented these quantitative data with qualitative analysis of
the three cases, and have pointed out instances in which my quantitative data do not tell
the whole story. A more detailed description of this methodology and its problems
follows below.
I have defined confirmation discourse for the purposes of this study as both the
official conversations that take place in the confirmation hearings and the unofficial
national “conversations” that consist of people or organizations making public statements
about confirmations. As stated earlier, this study is limited to those statements reported in
the New York Times. For each of the three nominations, I searched the Times’ archives
for articles about or closely related to the candidate. I defined the confirmation process as
events and discussions related to the confirmation that occur between the President’s
announcement of the nomination and the Senate vote. After removing letters to the editor
and straight transcripts of speeches and testimony, I was left with news, editorials, opeds, and columns. My study yielded 19 pieces about the Brandeis nomination, 58 about
the Fortas nomination, and 420 about the Thomas nomination. I sampled one out of every
5 Thomas articles, bringing that number from 420 to 84.
15
My unit of analysis for this study was the reference, which I defined as one
argument made or reported to have been made by a person or group. Each reference was
contained in one sentence or small group of sentences. For this study I included only
arguments about a candidate’s suitability for the Supreme Court. Because my subject is
the entire discursive field surrounding confirmations, as opposed to official sources, I did
not look only for direct quotes. I included as a reference any instance in which an
argument about a Supreme Court candidate’s suitability is mentioned. My population for
this study consisted of 250 references. For each of these, I coded for what criterion was
being used to evaluate the nominee. The categories I discuss most frequently below are
judicial temperament, impartiality, professional ethics, and ideology or method of
Constitutional interpretation. The full list of categories I used for this variable can be seen
in the Chart located at the end of this paper. Following is an example of one reference
and how I coded it:
Senator Strom Thurmond, Republican of South Carolina, a staunch opponent of the
Fortas nomination, charged that it was improper for a justice to receive pay for outside
work.27
Reason = professional ethics
Below I discuss the New York Times’ reporting on the confirmation battles for
Brandeis, Fortas, and Thomas, focusing on the arguments made about each candidate’s
suitability to be a Supreme Court Justice. I refer throughout this discussion to the
quantitative data, which are located in the chart at the end of this paper. These data
support some of my qualitative observations, but miss others, indicating that some
27
“Fortas Refuses to Appear Again in Senate Inquiry,” New York Times, September 14,
1968. (0146).
16
aspects of the arguments are well captured by quantitative analysis, while others are too
subtle. Difficulties emerged especially from the difference between what is meant and
what is said; content analysis measures only what is said directly. Sometimes a close
reading of the context in which a statement is made suggests that the speaker intended a
different meaning than the most obvious one, or was motivated by different concerns than
those expressed in the statement. Additionally, the quantitative portion of this study gives
each argument equal weight. Some arguments, however, may have more legitimacy or
impact than others in the context of the debate as a whole, depending on the forum in
which they are delivered. For example, a statement made during a confirmation hearing
may be perceived as more authoritative than a statements made outside the hearings. For
these reasons, a mix of quantitative and qualitative analysis produced the most useful
results.
V. Three Cases
Louis Brandeis
Louis Brandeis was nominated to the Supreme Court by President Woodrow
Wilson on January 28, 1916, and was confirmed on June 1, 1916.28 During his career in
private practice, Brandeis had actively supported unions, worker safety laws, and antitrust legislation.29 Business leaders and pro-business politicians vehemently opposed his
nomination, while organized labor groups and their allies championed it. The arguments
28
Janet B. Hodgson, “Chronology,” in Nelson L. Dawson, ed., Brandeis and America
(University Press of Kentucky: 1989), p. 8.
29
Hodgson, 6 and Maltese, 49.
17
made about Brandeis’s suitability included appeals based on both his substantive views
on specific issues and indicators of neutrality such as judicial temperament and fairness.
Most people who made public statements about Brandeis’s nomination were
clearly interested because they were either in favor of or against the pro-labor, anti-trust
agenda that Brandeis had come to symbolize. However, only 23.1% of reported
arguments were framed in terms of ideology. Participants in the national debate about the
nomination often chose instead to cite impartiality-related or ideologically neutral
criteria. The chart at the end of the paper shows that 11.5% of reported arguments about
Brandeis’s suitability cited judicial temperament as a reason, and 10.3% cited a sense of
truth, fairness, or impartiality:
Everywhere, even among the most critical, it was conceded that Mr. Brandeis was a man
of remarkable ability as a lawyer, but it was contended by the critics that this did not
necessarily mean that he was fitted for a place on the Supreme Court bench. That Mr.
Brandeis possessed the judicial temperament was questioned.30
The weekly publication of the Federation of American Zionists, The Jewish People,
writes in its editorial column that “In spite of the fact that he has appeared everywhere as
the protagonist of issues that involved bitter factional struggles, his mind is essentially
that of a judge; he has always been a seeker after truth and is a scrupulous believer in
justice and fair play.31
Those who favored Brandeis’s confirmation often cited ideologically neutral
standards of professional competence. The chart shows that 9% of reported arguments
about Brandeis’s suitability for the Supreme Court cited his skill as a lawyer, and 7.7%
cited his knowledge about important issues:
30
“Brandeis Named for Highest Court; Will Be Opposed,” New York Times, January 29,
1916.
31
“Zionist Organ Lauds Supreme Court Nominee and Assails Critics,” New York Times,
February 7, 1916.
18
Louis Marshall, the attorney, in commenting on Mr. Brandeis’s nomination yesterday
said: “I am very much pleased at the nomination. He is a very able lawyer and will make
an exceptionally good Judge, I believe.” Abram I. Elkus in discussing the nomination
said: “Mr. Brandeis should make a good Judge. He is a man of exceptional ability, a deep
student, and a hard worker. I have opposed him in various suits and I know him very
well. He is a very able lawyer.”32
Brandeis’s ideological stance was also cited as a reason for support and opposition:
The surprise over the President’s selection of Mr. Brandeis was due to several distinct
circumstances. The most striking of these, judged by the comment heard afterward at the
Capital, was the radicalism of Mr. Brandeis. Some of those who showed the most marked
symptoms of dissatisfaction indicated that they regarded him as practically a Socialist.33
When asked on what facts he based his confidence in the appointment of Mr. Brandeis,
Senator James replied: “I believe that his nomination will be confirmed … Brandeis,
when you come down to the truth of it all, has performed a great service for what we call
the ‘under dog’ in the fight. For instance, when the women’s eight-hour law had been
passed by the Legislature of Illinois and was being opposed by the interests, he appeared
as the counsel without charge for the laboring women of Illinois.”34
A few supporters and detractors cited the fact that Brandeis was Jewish:
Ex-Judge Sulzberger said: “Mr. Brandeis is a man of ability, and I am glad to learn of his
appointment. It gives evidence that President Wilson does not consider creed or
nationality in selecting men for public office.35
Two protests against Mr. Brandeis reached the committee today. One was apparently
from a Democrat in Texas, who said that the confirmation of Mr. Brandeis would be
“political suicide,” but who gave no reasons for his statement. The other was an
anonymous communication from St. Louis, signed “Southern Gentile Democrats,” who
protested simply on the ground of Mr. Brandeis being a Jew.36
32
“Praised for Aiding Labor,” New York Times, January 29, 1916.
“Brandeis Named for Highest Court; Will Be Opposed,” New York Times, January 29,
1916.
34
“Committee to Sift Brandeis Charges,” New York Times, February 1, 1916.
35
“Brandeis Nomination Finds Favor in Philadelphia,” New York Times, January 29,
1916.
36
“Senate Softens Toward Brandeis,” New York Times, January 30, 1916.
33
19
The chart shows that arguments based on Brandeis’s religion account for only
1.3% of reported arguments, but it is impossible to tell how many arguments had
underlying reasons not evident in the logic articulated. It appeared to several observers,
including Brandeis himself, that arguments against him based on his alleged lack of
impartiality served to mask opponents’ anti-Semitism or their antipathy to his pro-labor
record.37 Philippa Strum, in her biography of Brandeis, suggests that it was not antiSemitism per se, but the combination of anti-Semitism and bitter political disagreements
that created the heated opposition to Brandeis. She writes, “Brandeis, in fact, realized that
his Jewishness had relatively little to do with the extent and depth of the outcry: a Jewish
Wall Street lawyer who worked for J.P. Morgan would not have met with opposition
nearly as bitter.”38 It is likely that religion and ideology were intertwined in the
opposition to Brandeis’s nomination, and that anti-Semitic reactions exacerbated the
opposition to his political views.
The arguments reported by the New York Times regarding Brandeis’s
qualifications were partially shaped by the Senate Judiciary Committee’s decisions
regarding whom to invite to testify and what kinds of questions to ask. The Committee
summoned only individuals who had known Brandeis in a professional capacity, and
asked them to comment only on Brandeis’s conduct as a lawyer. Many individuals who
testified against Brandeis had been on the losing side of legal battles he had fought, and
tried to convince the committee that Brandeis had committed improprieties and had used
37
Philippa Strum, Louis D. Brandies – Justice for the People (Harvard University Press:
1984) 293.
38
Strum, 294.
20
duplicitous tactics.39 It is likely that this focus on professional ethics during the hearings
helped to shape the public statements made by supporters and detractors. The chart shows
that 9% of reported arguments about Brandeis’s suitability for the Supreme Court
presented professional ethics, honesty and trustworthiness as reasons:
A mass of documentary information concerning charges against Mr. Brandeis is already
at the disposal of the Committee on the Judiciary.” One of these letters was apparently
written by L.A. Coolidge, the Treasurer of the United Shoe Machinery Company. “Mr.
Coolidge charged that, after having helped draw the leases of the company, Mr. Brandeis
had “given his professional opinion that they were unlawful.40
C.W. Barron, editor of the Wall Street Journal … charged Mr. Brandeis with … having
served both sides at the same time in litigation and hinted that Mr. Brandeis had procured
the signature of an old and dying man to a deed of trust by questionable means.41
The praise that Brandeis received from unions and Progressives and the
opposition that he elicited from business interests supports Maltese’s contention that
Supreme Court Justices have always been favored or opposed because of their ideological
stances. However, the arguments about Brandeis reported in the New York Times show
that, although they may have been motivated by ideological concerns, participants in this
confirmation debate preferred to articulate their support or opposition in terms of
ideologically-neutral criteria such as fairness, impartiality, judicial temperament,
knowledge, experience, intelligence, and legal skills.
Abe Fortas
President Lyndon Johnson nominated Abe Fortas to be Chief Justice of the
Supreme Court on June 26, 1968, when Fortas had been an Associate Justice for three
39
Maltese, 51.
“Committee to Sift Brandeis Charges,” New York Times, February 1, 1916.
41
“Brandeis Charges Voiced by Barron,” New York Times, February 11, 1916.
40
21
years. Fortas’s jurisprudence while he was an Associate Justice showed a commitment to
securing fair trials for criminal defendants and to protecting the underprivileged. He often
supported civil rights protesters, although he was less often willing to support those
protesting the Vietnam War. 42 Fortas had been a close friend and advisor to President
Johnson before he was nominated to the Supreme Court, and this relationship continued
after he joined the court. He sat in on cabinet meetings, gave the President advice and
helped draft Presidential speeches.43 Fortas’s nomination to be Chief Justice generated
bitter debate about his professional ethics and about the decisions of the Warren Court,
and was defeated by a filibuster on October 1, 1968. After Lyndon Johnson withdrew the
nomination, allegations about Fortas continued to surface, and on May 14, 1969, Fortas
resigned from the Supreme Court.
The arguments reported about Fortas’s 1968 nomination demonstrate a mix of
logics, but ideology was more prevalent than it was for Brandeis’s nomination.
Republican Senators made the argument that, because Lyndon Johnson was at that point a
“lame duck” President, the nomination should be made by the next President, whom it
was no secret that they expected to be Richard Nixon.44 This argument’s partisan slant
was clear for two reasons. First of all, this logic was promoted by Southern Senators who
were sharply critical of the Warren Court decisions, in which Fortas had often
participated. Second of all, 1968 was an election year, and Presidential candidate Richard
Nixon had not only made opposition to the Warren Court one of his campaign themes,
but also publicly agreed with the argument that President Johnson’s successor should
42
Kalman, 260.
Kalman, 307.
44
Maltese, 71.
43
22
nominate Earl Warren’s successor.45 The chart shows that these lame duck arguments
made up 10.1% of the total arguments reported:
Several senators in the opposition bloc said they based their opposition solely on the issue
of a lame duck President’s making such appointments, rather than leaving them to the
next President.46
Senator John O. Pastore of Rhode Island criticized the lame duck argument and noted
that three Senators had announced plans to retire next January. He asked if they should be
barred from voting in the Senate.47
Fortas’s opponents also argued directly that he should not be confirmed because
he had shown himself, as Associate Justice, to be sympathetic to the liberal leanings of
the Warren Court and therefore “soft on crime.” The chart shows that these ideologybased arguments made up 32.6% of the arguments reported, a significant jump from the
23.1% of arguments that were ideology-based in the case of Brandeis.
Two former Senate Judiciary Committee staff members, Charles Callas of New York and
Benjamin Ginzburg of Washington, also opposed the Fortas nomination. Mr. Ginzburg
took issue with the views on civil disobedience that Mr. Fortas expressed in a book,
“Concerning Dissent and Disobedience,” published recently by the New American
Library.48
The Senate Democratic whip, Russell B. Long, Democrat of Louisiana, announced today
he would oppose the nomination of Abe Fortas as Chief Justice because of his Supreme
Court positions supporting the rights of criminal suspects.49
Many of Fortas’s supporters defended him based on his competence:
Leaders in the American Bar Association have studied the records of both nominees and
have deplored the Senatorial efforts to bar them on non-judicial grounds. William T.
45
Kalman, 331 and Maltese, 71.
“19 in the Senate Study Filibuster,” New York Times, June 27, 1968.
47
“Senate Democrats Defend President on Court Choices,” New York Times, June 29,
1968.
48
“Dirksen Defends Johnson’s Naming Friends to Court,” New York Times, July 13,
1968.
49
“Russell Long Says He Opposes Fortas to Head High Court,” New York Times, July 14,
1968.
46
23
Gossett, the new A.B.A. president, has accused Senator Griffin of “practicing politics,”
adding that Mr. Fortas has “first class intellectual equipment” for the high post.50
Fortas was invited to appear before the Senate Judiciary Committee, making him
the first sitting Justice ever to be called to testify. He was questioned regarding two basic
objections to his confirmation. The first category of questions concerned whether the
assistance he had given the President on policy matters threatened his judicial
independence. This line of questioning draws on the impartiality paradigm:
Senator Sam J. Ervin Jr., North Carolina Democrat, remarked that it was “sort of queer
for a member of the judiciary to be involved” in consultations with the President.51
Justice Abe Fortas testified today that since he joined the Supreme Court he had assisted
President Johnson in strategy planning conferences on the Vietnam War and urban riots.
However, he insisted that he had never advised the President on issues that could reach
the Supreme Court, and he asserted that his role in the meetings was to sum up arguments
presented by others … The disclosure by a Supreme Court Justice of participation in
White House decision-making was unprecedented.52
The second category of questions concerned the rulings of the Warren Court and the part
that Fortas had played in them. This line of questioning draws on the ideology paradigm:
Justice Fortas sat mute as Senator Ervin spent the rest of the afternoon – two hours and
ten minutes – reading excerpts from recent decisions on such subjects as criminal
defendants’ rights and anti-Communist loyalty oaths for public employees.53
Much of the morning’s session was taken up by testimony by representatives of Citizens
for Decent Literature, an anti-pornography group that opposes the promotion of Justice
Fortas. James J. Clancy of Los Angeles, an attorney for the group, testified that recent
Supreme Court rulings on obscenity had legalized the sale of pornography material
“that would not even be sold openly in France.” Mr. Clancy said that Justice Fortas had
tended recently to vote with those justices who took a permissive view of obscenity.54
50
[editorial] “Justices, Not Candidates,” New York Times, Sept 3, 1968.
“Fortas Asserts He Aided Johnson While a Justice,” New York Times, July 17, 1968.
52
“Fortas Asserts He Aided Johnson While a Justice,”New York Times, July 17, 1968.
53
“Fortas Asserts He Aided Johnson While a Justice,”New York Times, July 17, 1968.
54
“Senate Panel Bids Officials Explain Pro-Fortas Memo,” New York Times, July 23,
1968.
51
24
Fortas was the first Jew to be nominated to the Chief Justiceship, and as was the
case with Brandeis, it is likely that some of the opposition to Fortas was tinged with antiSemitism and that some arguments served to mask this. However, it is impossible to
determine the extent to which this was true solely by looking at arguments reported in the
newspaper. Laura Kalman, Fortas’s biographer, writes that “Senator Eastland reportedly
was worried that he ‘could not go back to Mississippi’ if the Senate confirmed a Jewish
Chief Justice.”55
The Senate agreed to waive the rule under which President Johnson’s Supreme
Court nominations would have lapsed during the Congressional recess for the national
political conventions in early August of 1968.56 At the Republican convention,
Presidential nominee Richard Nixon criticized “some of the courts” for weakening the
cause of law and order.57 When Congress reconvened in September, new allegations
regarding Fortas’s possible conflicts of interest had surfaced. A journalist had reported
that Fortas had helped write President Johnson’s 1966 State of the Union speech, and
Republican Senator Gordon Allott told reporters that he had witnessed Fortas’s
participation in drafting legislation.58 These charges reignited the concern that Fortas’s
judicial independence was tainted by allegiances to policies he had helped craft. The
Senate Judiciary Committee asked Fortas to reappear for more questioning, but Fortas
declined. Soon after that, Republican Senator Robert Griffin discovered that Fortas had
taught a seminar at American University’s law school, and that the school had raised
money from businessmen in order to pay Fortas’s salary. Although Fortas maintained that
55
Kalman, 346.
“Senate Acts to Prevent Lapsing of Nominations,” New York Times, August 3, 1968.
57
Kalman, 345.
58
Kalman, 351.
56
25
he did not know the identities of any of the underwriters until the hearings,59 his
opponents asserted that he had behaved improperly:
Committee critics of Justice Fortas contended today that it was improper for him to
receive funds solicited from financial and business leaders who might sometime be
involved in litigation before the Court.60
After hearing testimony by Senator Allott regarding Fortas’s participation in
drafting legislation and testimony by a member of the Los Angeles Police Department
Anti-Obscenity Unit who asserted that the Supreme Court had “opened the floodgates to
pornography,” the Senate Judiciary Committee voted on the nomination and reported it
out with eleven in favor of confirmation and six against. The nomination reached the
Senate floor on September 25 and opponents began a filibuster.61 When a vote was called
on October 1, there were not enough votes to break the filibuster, and President Johnson
withdrew the nomination.62 Richard Nixon was elected in November. After charges of
further improprieties surfaced, and amidst pressure from the Nixon Administration,
Fortas resigned on May 14, 1969.63
The arguments reported about Abe Fortas demonstrate important differences from
the arguments made about Louis Brandeis. Not only did arguments using the ideology
paradigm grow from 23.1% to 32.6%, but ideology-based arguments also held a more
authoritative position in the Fortas confirmation, by virtue of the fact that they figured
prominently in the hearings. While many of Brandeis’s opponents had probably been
59
Kalman, 352.
“Fortas Refuses to Appear Again in Senate Inquiry,” New York Times, September 14,
1968.
61
Kalman, 355.
62
Kalman, 356.
63
Maltese, 71.
60
26
motivated by ideology, the only people invited to testify at the hearings were people who
had worked with or against Brandeis in a professional capacity, and who could testify as
to his legal competence and ethics. During Fortas’s hearings, however, several witnesses
testified about the harm caused by specific cases decided by the Warren Court, and
Senators on the Senate Judiciary Committee posed direct questions about Fortas’s
jurisprudence. While the nominees’ ideologies may have played equivalent roles in
motivating both Brandeis’s and Fortas’s opponents, this comparison of the arguments
shows that participants were more willing to publicly articulate their arguments in terms
of ideology in 1968 than they had been in 1916.
Clarence Thomas
President George H. W. Bush announced the nomination of Clarence Thomas on
July 1, 1991. Thomas was nominated to replace Thurgood Marshall, the first black
Supreme Court Justice, who had been a champion of civil rights. Thomas, who is also
black, had demonstrated a commitment to conservative ideals and a profound
disenchantment with the logic of the civil rights movement.64 Liberal groups and
Senators were torn about Thomas’s nomination, because, while they did not want to be in
the position of arguing against confirmation of the second black man ever nominated to
the Supreme Court, they feared that Thomas, who was just 43, would help extend the
Reagan Revolution for decades to come.
The Thomas confirmation shows a continuation of the trends evident in the Fortas
confirmation. The arguments about Thomas’s suitability for the Supreme Court
64
Timothy M. Phelps and Helen Winternitz, Capitol Games – Clarence Thomas, Anita
Hill, and the Story of a Supreme Court Nomination (Hyperion: 1992), 104.
27
demonstrate more reliance on ideology than did the two previous confirmations and less
reliance on neutral standards of competence or indicators of neutrality. After President
Bush announced Thomas’s nomination, opposition from liberal groups was swift, and
focused almost entirely on his conservative views. The National Abortion Rights Action
League held a press conference in which they announced that a speech of Thomas’s
strongly implied disagreement with Roe v. Wade.65 The Congressional Black Caucus
voted to oppose Thomas because of his conservative views.66
The Thomas hearings began on September 10, 1991. Senators questioning
Thomas emphasized concerns about his political views and asked him about his opinions
on specific cases,67 but Thomas testified that he had shed his ideology when he became
an Appeals Court Judge.68 On September 27, the Senate Judiciary Committee voted and
tied, 7-7, sending the nomination to the floor with what amounted to a message of no
confidence.69
The full Senate vote was scheduled for Tuesday October 8, but on Sunday,
October 6, newspapers reported that Anita Hill, a law professor who had once worked as
Thomas’s assistant, alleged that Thomas had sexually harassed her when he was her
boss.70 Some Democrats urged a delay in the Senate vote to allow for an investigation of
the charges. Republicans called the charges a sleazy last-minute attempt to stop the
nomination, pointing to several aspects of Hill’s story that they claimed cast doubt on her
65
Phelps and Witnernitz, 19.
“Blacks Spar Over Endorsing Thomas,” New York Times, July 18, 1991.
67
“The Opening Skirmish; Thomas Scores Points in the Crucial Battle Fort the First
Impression, But So Do Critics,” New York Times, September 10, 1991.
68
“Sticking to the Script; Confirmation Process Lets Judge Say As Much, or as Little, as
He Chooses,” New York Times, September 12, 1991.
69
Phelps and Winternitz, 221.
70
Phelps and Winternitz, 228.
66
28
truthfulness.71 Clarence Thomas asserted that he wanted a chance to clear his name, and it
was decided that the vote would be delayed for one week.
The second set of hearings began on Friday, October 11. Thomas testified first,
denying all charges.72 Anita Hill then gave her statement describing the harassment.73 She
was cross-examined about various aspects of her story, and witnesses testified for both
sides. Clarence Thomas appeared again, calling the process a “circus” and a “high-tech
lynching for uppity blacks.”74 The final vote was held on Tuesday, October 15, and
Thomas was confirmed 52-48.75
The arguments made about Thomas’s suitability for the Supreme Court
demonstrated more reliance on ideology and less reliance on impartiality or neutral
standards of competence than had been demonstrated by the arguments about Fortas. The
chart shows that references to intelligence, professional ethics and skill as a lawyer grew
less frequent, and references to judicial temperament and impartiality did not appear at
all. The percentage of reported arguments about Thomas’s suitability that used his
ideology or method of Constitutional interpretation as a criterion was 33.7%, up from
32.6% for Fortas:
The National Women’s Law Center is opposing Judge Clarence Thomas’s nomination to
the Supreme Court, saying his record “shows no commitment to core constitutional or
statutory protections for women.”76
[from an op-ed by Lawrence Tribe] While any candidate nominated to replace Justice
Thurgood Marshall would likely accelerate the Court’s rightward trend, Judge Thomas’s
71
Phelps and Winternitz, 241.
Phelps and Winternitz, 302.
73
Phelps and Winternitz, 310.
74
Phelps and Winternitz, 356.
75
Phelps and Winternitz, 413.
76
“Group Rejects Thomas Over Women’s Rights,” New York Times, August 23, 1991.
72
29
adherence to “natural law” as a judicial philosophy could take the Court in an even more
troubling direction. Most conservatives criticize the judiciary for expanding its powers,
“creating” rights rather than “interpreting” the Constitution. These critics talk of returning
issues like abortion to democratically elected and politically accountable bodies. Clarence
Thomas, judging from his speeches and scholarly writings, seems instead to believe
judges should enforce the Founders’ natural law philosophy – the inalienable rights
“given man by his Creator.”77
The percentage of reported arguments about Thomas’s suitability that cite his
ideology climbs from 33.7% to 43.3% when one adds the 9.6% of arguments claiming
that Thomas had not adequately answered questions about his ideology. This suggests
that candidates’ views on specific issues were considered vital for assessing suitability for
the Supreme Court. Thomas was coached to present himself as having no strong
opinions, particularly on controversial topics such as abortion.78 When asked repeatedly
about his opinion on Roe v. Wade, Thomas refused to provide an answer.79 Some
observers were not swayed:
In his Senate floor remarks, Mr. Biden said that Judge Thomas had declined to discuss
too many things and had offered too many vague and confusing answers before the
committee. “Perhaps this is what some have advised him would be the best route to
confirmation and perhaps they are right about the politics,” Senator Biden said, ‘but it is a
political strategy that I do not intend to endorse by voting for Judge Thomas’s
confirmation.”80
Race was mentioned in 4.8% of the reported arguments about Thomas’s
suitability for the Supreme Court, while religion had been mentioned in only 1.1% of the
reported arguments about Fortas. Although race and religion are not the same thing, it is
possible to inquire here whether there have been changes in the ways in which nominees’
minority group memberships have been discussed. This is an instance in which
77
[editorial] “Clarence Thomas and Natural Law.” New York Times, July 15, 1991.
[editorial] “A Justice Until 2030?” New York Times, July 2, 1991.
79
Phelps and Winternitz, 179.
80
“Judiciary Panel Deadlocks, 7-7, On Thomas Nomination to Court,” New York Times,
September 28, 1991.
78
30
quantitative content analysis was unable to capture the shape of the change in the
discourse. During Brandeis’s and Fortas’s confirmation processes, the fact that these
candidates were Jewish was mentioned in bluntly anti-Semitic statements by a few
opponents and in praise for the “religious tolerance” shown by the appointment. During
Thomas’s confirmation process, race was discussed in more complex and varied ways.
Several arguments referencing race highlighted the importance of ideology in evaluating
a candidate and the difficulty of tying ideology to race:
“I think there is a debate in the black community about Thomas that will not be solved
easily,” he [Benjamin Hooks] said, adding later, “I suspect there is a difference of
opinion among the delegates” to the [NAACP] convention. That Judge Thomas is black
by no means assures him of the support of the NAACP, Dr. Hooks said. “We are not
going to let race blind us to the totality of the situation,” he said. The association’s staff,
he said, is conducting an extensive analysis of Judge Thomas’s actions both in his current
position on the United States Court of Appeals for the District of Columbia Circuit and as
chairman of the Equal Employment Opportunity Commission.81
Thurgood Marshall, the Justice stepping down, made a similar argument.
In his news conference on Friday, Justice Marshall observed that race would be a factor
in the nomination of his successor, but he said it should not be used as “an excuse for
doing wrong – picking the wrong Negro and saying, ‘I’m picking him because he’s a
Negro.’ “ That remark was widely interpreted as pre-emptive criticism of an appointment
for Judge Thomas.82
Some participants debated whether race should be considered relevant to a confirmation
decision for reasons other than its effect on the nominee’s jurisprudence:
Interviews with black lawyers over the past two days found resignation and fatigue, but
almost no one enthusiastic about anything regarding Judge Thomas except his
background and his race. Those favoring his confirmation cite the symbolic importance
of having a black person, particularly one of humble origins, on the High Court, however
uncongenial or heretical his views … But several black lawyers disputed the symbolic
importance of having a black on the Court if that black is conservative. They expressed
81
“Court Nominee at Focus of Debate as NAACP Meets in Houston,” New York Times,
July 8, 1991.
82
“Conservative Black Judge, Clarence Thomas, Is Named to Marshall’s Court Seat,”
New York Times, July 2, 1991.
31
fears that Judge Thomas is so malleable and estranged from his roots that he could be
manipulated by right-wing Justices eager to make their own anti-civil rights, antiaffirmative action agendas more respectable.83
One New York Times editorial claimed that Thomas should be scrutinized especially
carefully because his race and his jurisprudence do not line up as expected:
Neither is the nominee entitled to a presumption in his favor because of his race. On the
contrary; because of the history of oppression against his race, he owes the Senate and
public an explanation of why he differs so strongly with civil rights advocates about the
right remedies for proven discrimination.84
It is clear from the focus on ideology in the Thomas confirmation that participants
found it acceptable to frame opinions about a nominee in terms of what particular point
of view the nominee would bring to the bench. However, the discussions about whether
or not sexual harassment charges should be considered relevant to confirmation brought
to light the lack of consensus about what factors lead to a particular point of view.
Although all of the Senators on the Senate Judiciary Committee – Democrats and
Republicans – had been told of Hill’s charges early during the confirmation process, none
of them thought them serious enough to bring to light until the news media had made
them impossible to ignore. This issue necessitates a more complete discussion than it can
be given here, but for the purposes of this paper, the salient point is that there exists a
difference of opinion regarding what factors define ideology or prevent impartiality.
Thomas’s confirmation process is now often associated with the sexual
harassment charges, and what is less often remarked on is the fact that much of the
opposition to him was focused on his conservative ideology and not on the sexual
harassment charges. Although Maltese shows us that confirmation decisions have always
83
“Less Pride Than Pain by Black Lawyers on Thomas,” New York Times, August 12,
1991.
84
[editorial] “A Justice Until 2030?” New York Times, July 2, 1991 (0020).
32
been at least partially based on candidates’ ideologies, the discourse surrounding
Thomas’s confirmation suggests that these motivations have become more acceptable and
legitimate for public debate.
Conclusion
In this examination of the discourse surrounding the confirmation battles over
Louis Brandeis, Abe Fortas, and Clarence Thomas, we have seen evidence that the types
of arguments made about candidates’ suitability have changed over the course of the 20th
century. Arguments based on the conception that Justices impartially apply the law to
reach “correct” answers have declined, and arguments based on the conception that
jurisprudence is shaped by political views have risen.
These findings suggest two questions for further research. First, why is it that
arguments about candidates for the Supreme Court are increasingly framed in terms of
ideology? Has this become more acceptable because of a change in the conception of the
Justices’ role? Or is this development related to politicians’ strategy of “going public,”
the participation of interest groups in the confirmation process, the concerns of the
public, or changes in the types of cases that the Court agrees to hear? Second, what are
the implications of this shift? Does evaluating Justices based on their political views
bolster or subvert the Court’s work and the functioning of democracy?
33
Supreme Court Candidate
Brandeis
Reasons given for or
against the candidate’s
suitability
Quality of
Scholarship
ABA rating
Thomas
1
1.2%
1
1.2%
1
1.2%
3
3.6%
1
1.2%
4
4.8%
6
7.2%
Total
2
.8%
2
.8%
10
4.0%
5
2.0%
10
4.0%
8
3.2%
9
3.6%
13
5.2%
22
8.8%
8
3.2%
12
4.8%
9
3.6%
6
2.4%
6
2.4%
6
2.4%
Overcame econ.
hardships
Ideology, method
Of Const interp.
Opinions not
know, hidden
Sexual
harassment
Count
%within candidate
Count
%within candidate
Count
%within candidate
18
23.1%
29
32.6%
28
33.7%
8
9.6%
5
6.0%
75
30.0%
8
3.2%
5
2.0%
Other
Count
%within candidate
Count
% within candidate
11
14.1%
78
100%
7
7.9%
89
100%
14
16.8%
83
100%
32
35.6%
250
100%
Intelligence
Personality
Judicial
Temperament
Fairness,
impartiality
Knowledge about
important issues
Prof. ethics,
integrity, honesty
Skill as a lawyer
or judge
Cronyism, does
favors for friends
Threatens sep. of
powers
Lame duck
argument
Prejudiced for
certain interests
Race or religion
Total
Fortas
1
1.1%
1
1.1%
5
5.6%
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
% within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
Count
%within candidate
4
5.1%
2
2.6%
9
11.5%
8
10.3%
6
7.7%
7
9.0%
7
9.0%
1
1.1%
5
5.6%
10
11.2%
8
9.0%
12
13.5%
9
10.1%
5
6.4%
1
1.3%
1
1.1%
3
3.6%
1
1.2%
5
6.0%
34
Chi-Square Tests
Pearson Chi-Square
Value
172.832*
Df
42
Asymp. Sig. (2-sided)
.000
Likelihood Ratio
193.400
42
.000
Linear-by-Linear
Association
3.296
1
.069
N of Value Cases
250
* 57 cells (86.4%) have expected count less than 5. The minimum expected count is 31.
35
Sources Cited
James Carey, “Political Ritual on Television: Episodes in the History of Shame,
Degradation, and Excommunication” in James Curran and Tamar Liebes (Eds), Media
and Public: Rethinking the Part Played by People in the Flow of Mass Communication
(Routledge: 1998)
The Constitution of the United States, Thirteenth Edition, 1991. Published by the
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