JUDICIAL POLITICS: THE DEVOLUTION OF THE THIRD BRANCH OF GOVERNMENT.

• Author: Williams, Brendan

Well prior to President Trump's polarizing nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, it was clear that federal judicial nominations were ideological winner-take-all lottery prizes. Some presidents win, while others lose. Increasingly it has become a politicized process impossible to defend, even for an attorney sworn to "maintain the respect due to the courts of justice and judicial officers." (1)

President Gerald Ford, the only president never to be elected to either that office or the vice presidency, filled a Supreme Court vacancy, created by the retirement of Justice William O. Douglas--who Ford, while in Congress, had tried to impeach (2)--while his successor, President Jimmy Carter, never got an opportunity to fill a Court vacancy. Thus far President Trump, just two years into his presidency, has had as many Supreme Court vacancies to fill--two--as did Presidents Bill Clinton and Barack Obama during each of their presidencies, and both served two terms.

Things have certainly changed since the 1975 nomination of Justice Paul Stevens. Ford picked Stevens the day after the retirement letter from Douglas was sent to the White House. (3) As the late deputy attorney general to Ford, Harold Tyler, recalled, "[t]he President sent the nomination over right away and as I think I told you off the record, 19 days after he sent the nomination over, the Senate confirmed Justice Stevens." (4)

Stevens would not be the only liberal justice appointed by a Republican president. When William J. Brennan Jr. got the call to visit President Dwight Eisenhower he "thought nothing of the request and even stopped at Union Station for a hot dog to bide his time, according to Robert M. O'Neil, who would become one of Brennan's first law clerks. 'He didn't expect to get dinner at the White House,' O'Neil said." (5) Brennan was confirmed as an associate justice on a 1957 voice vote, with the only audible dissent from Senator Joseph McCarthy (R., Wis.), and it was reported that "Brennan later said no one in the Eisenhower administration asked him a single question about his politics or judicial philosophy." (5) To be sure, there have been controversial Supreme Court nominees in the modern age, most notably under President Richard Nixon.

His first nominee, Judge Clement Haynsworth, "was rejected 55 to 45, with 17 Republican senators voting no. It was the tenth time in the nation's history that a Supreme Court nominee had been rejected." (5)

Following that rejection, Nixon's second unsuccessful Court nomination of Judge G. Harrold Carswell prompted one of the more famous defenses of all time, when Senator Roman Hruska (R., Neb.)--the top Senate Judiciary Republican--asked: "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?" (5)

As one article noted, "[t]he Senate rejected Judge Carswell after reporters and civil rights activists uncovered a speech in which he endorsed racial segregation and white supremacy as a legislative candidate in Georgia in 1948." 9 The vote was 51-45. (10)

Despite those failed nominations, deeply politicized at the time, most would point to the 1987 nomination by President Ronald Reagan of" Judge Robert Bork as launching the current era of Court politicization. (11)

Bork had worked for Nixon, and "fired Special Prosecutor Archibald Cox after the attorney general and deputy attorney general refused President Nixon's firing order and quit." (12) As a Court nominee, he had a very conservative record:

He opposed the Supreme Court's one man, one vote decision on legislative apportionment. He wrote an article opposing the 1964 civil rights law that required hotels, restaurants and other businesses to serve people of all races. He opposed a 1965 Supreme Court decision that struck down a state law banning contraceptives for married couples by claiming there is no right to privacy in the Constitution. And he opposed Supreme Court decisions on gender equality. (13) And yet, despite an all-out assault on his record, "two months later, when the confirmation hearings began, public opinion still was on Bork's side."! (14) He came across terribly in the hearings, however: "In the end, Bork was defeated by a vote of 58 to 42, the largest margin in history." (15)

Reflecting on Bork, Andrew Cohen would write in The Atlantic:

The relentless honesty and arrogant mien of Robert Bork, who has died at 84, during his unforgettable 1987 Supreme Court nomination hearing resulted in two very important things for this nation. First, it precluded the ideologue from becoming a life-tenured justice, which has meant over the intervening 25 years many saving graces for progressives and many bitter disappointments for conservatives. Second, it changed (forever, I suspect) the way judicial confirmation hearings unfold, by encouraging earnest nominees to say to the Senate Judiciary Committee nothing at all candid, specific, or profound about their judicial philosophies or views of the law. (16) Prior to Kavanaugh, the most-superheated nomination process was that of Clarence Thomas in 1991 by President George H.W. Bush. Thomas was accused by Professor Anita Hill, a former employee, of sexual harassment. He had the support of conservative groups, and a book by David Brock (17) assisted in tearing down Hill. (18) In his outrage, feigned or otherwise, Thomas famously got the better of his inept Senate Judiciary inquisitors:

This is a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity-blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order, this is what will happen to you, you will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree. (19) Democrats might forget that Senate Judiciary Committee Chair Joe Biden (D., Del.), the future vice president, made things worse for Hill: "Biden's colleagues weren't the only ones to mistreat Hill. He also posed questions designed to humiliate her." (20) Thomas was confirmed by a 52-48 margin. (21) He would not have been confirmed without Democratic support: "Eleven Democrats joined 41 of the 43 Republicans in supporting him." (22)

As the New York Times reported, "After three days of televised inquiry into an accusation that Clarence Thomas had sexually harassed an aide, Americans still favor the judge's confirmation to the Supreme Court by a ratio of 2 to 1, according to the latest New York Times/CBS News Poll." (23) Yet the spectacle was also credited with giving rise to the "Year of the Woman" in the 1992 elections. (24)

Yet Democrats showed no real fight in learning the lessons of the Thomas nomination. (25)

One can argue the U.S. Supreme Court's transformation into overt-partisanship occurred not with the 2016 failure of a Republican Senate majority to confirm centrist Merrick Garland to fill the seat of the deceased Justice Antonin Scalia, (26) but in 2005, when 22 Senate Democrats...