Rhetoric and Rancor in the Confirmation Process: A Wee History

Ever yearn for those good old days when Supreme Court nominations did not generate such partisan rancor? Many consider that to be any time before the nomination of Robert Bork in 1987. Remember this reaction to his nomination?

“. . . taking into view [his] reputation, character, and professional career, he is not a fit person to be a member of the Supreme Court of the United States.”

Oops, my mistake. That comment wasn’t about Robert Bork; it was directed at Louis Brandeis in 1916. Woodrow Wilson did not shy away from nominating this intellectual giant, the first Jew to serve as a justice, but the opposition was fierce and the rancor distinct.

Still, that comment seems rather mild, almost gentile. Was it really that way back when? Let’s get more personal. What about “an office too important and dignified for a character not very far above mediocrity. . . [he is] wholly destitute of every qualification for that important station.” Or “[This nomination] is an affront to the Court and to the people. [It] is as menacing as it is unfit. [The president has] picked the one who would be generally regarded as the worst he could find.” Surely, these observations rank right up there with the comment made by a senator in voting against Clarence Thomas, “I cannot find a single distinguishing aspect of [this nominee's] legal career that would warrant his consideration for the Court.”

The “mediocrity” comment was directed at one of our very first justices, John Rutledge, nominated to be our second Chief Justice in 1795 by the Father of our Country. The “worst” comment was directed at Hugo Black in 1937, considered by many to be one of the strongest voices in the Warren Court of the 50s and 60s.

If we were to hear this following comment today, it would undoubtedly elicit complaints about how politicized the process has become: “Even those most acquainted with modern degeneracy were astounded at this abominable nomination.” But this comment came in 1811, directed at Alexander Wolcott, a nominee put forward by the Father of our Constitution, James Madison.

Hyperbole abounds in reactions to nominees. Of Roger Taney, an Andrew Jackson nominee, it was said, “[He administered]...the most dangerous blow which has been given our constitution and law. If [he] ... be now confirmed, all will be lost.” The “blow”was Taney’s undermining of the Second Bank of the United States, as Jackson’s Secretary of Treasury. Perhaps the statement was not overly aggressive: Taney’s majority opinion in the Dred Scott case is considered by some as moving the nation a step closer to the Civil War.

One of the most famous reactions to a nomination was made, not by an opponent, but by a supporter. Never was “damning with faint praise” more evident than in Senator Roman Hruska’s effort to support Nixon nominee Harold Carswell: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Frankfurters and Cardozos . . .”

If there’s a lesson to be gleaned from all of this, it is that the process of appointing Supreme Court justices has always been partisan and political. While plaintive voices and oppositional reactions of advocacy groups have proliferated with expanding media fora, rancorous rhetoric has been common in the public sphere from the dawn of the republic. If it ever seemed otherwise, it was only because of solid Senate support for the president or because the president himself chose to exercise a politics of consensus rather than the politics of controversy in making a nomination.

And while we may legitimately decry the rancor, making the appointment process an adversarial one is not inappropriate. After all, the justice system itself assumes an adversarial system is the best way to find the truth.

[For more on this subject, visit "A Vacancy on the Court," a civic education project of Professor George Watson at http://supremecourt.ws]