Stephen L. Carter: Let the Nominee Stay Home





[Stephen L. Carter is a professor of law at Yale and the author of the forthcoming novel “Jericho’s Fall.”]

... Confirmation hearings for potential justices have become so intricately woven into our political tapestry that Americans might be excused for thinking that they were part of the original design. They were not. The modern tradition of requiring every nominee to sit before the Senate Judiciary Committee as its members ask about judicial philosophy and views on various cases stems from one of the grimmer episodes of American history: the last-ditch effort by determined segregationists to derail Brown v. Board of Education.

Before that 1954 case, it was virtually unheard of for a nominee to appear in person before the Senate. Only two had been called, each because of special circumstances surrounding the nomination. But there was always a sense that demanding testimony was somehow unseemly. The bar frowned on the practice, and the senators avoided it. Abraham Lincoln, questioned about his nomination of Salmon P. Chase as chief justice, responded, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

Brown changed everything. Infuriated by the Supreme Court’s temerity in striking down public school segregation, the Southern Democrats who in those days still largely ran the Senate began to require that all potential justices give testimony before the Judiciary Committee. When the nominees appeared, the Dixiecrat Senators grilled them on Brown. The first was John Marshall Harlan in 1955, who declined invitations to discuss either specific cases or judicial philosophy as “a matter of propriety.” One by one, later nominees followed his example.

Some of them suffered for it. Justice William Brennan was roughed up at his hearing by Senator Joseph McCarthy, not even a member of the committee, who was permitted to make a special appearance to torment Brennan about his views on Communism. In the 1960s, Thurgood Marshall was grilled on minutiae about the history of the Constitution, part of an effort by opponents to demonstrate that the man who had by that time won 29 out of 32 cases before the Supreme Court was intellectually not up to the job.

At that time, the conservative position in American politics was that the nominee should satisfy the committee that his judicial philosophy was consistent with the will of the American public. Liberals, on the other hand, believed that this demand violated the separation of powers. During the debate on the Senate floor over Marshall’s nomination, Senator Edward Kennedy argued stirringly against consideration of judicial philosophy, rejecting the proposition that nominees should be confirmed only if their views “coincide with our own.”...


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