The New Religion

• Publication year: 2022

40 Creighton L. Rev. 399. THE NEW RELIGION

Creighton Law Review

Vol. 40

MICHAEL J. GERHARDT(fn*)

INTRODUCTION

In 2006, one chapter in the history of the Supreme Court came to a close, and a new one began. The Senate's confirmation of Samuel Alito, Jr., as the Supreme Court's 110th justice, signaled the formal end to the nearly twenty-five-year-long tenure of the first woman appointed to the Court, Sandra Day O'Connor. Justice Alito's appointment further marked the end to the second longest period in our nation's history without a vacancy arising on the Court. With Justice Alito's confirmation, Justice Stephen Breyer fell a couple months shy of the record for the longest serving junior justice in American history. The appointments of Chief Justice Roberts and Justice Alito also marked the first time since 1971 that two new justices joined the Court during the same Term.

My objective in this Essay is to explore the ramifications of these historic developments for the Supreme Court and particularly the judicial selection process. Initially, I will examine what was distinctive about President George W. Bush's Supreme Court nominations and the confirmation proceedings for those nominations. Many people worry that the confirmation process for Supreme Court nominations is broken and cite the Senate's rejection of Robert Bork's nomination to the Court as the watershed event signaling the demise of the confirmation process. Some people undoubtedly saw the confirmation proceedings for Roberts and Alito as restoring the Supreme Court selection process to proper working order. I will explain why I am skeptical that the proceedings marked a return of the process to what it had been during some previous supposedly golden era. While there was much to admire about the nominations of Roberts and Alito and the Senate's proceedings on those nominations, I remain concerned that a serious problem throughout the hearings was a disturbing, persistent lack of candor.

The Supreme Court confirmation process cannot be fixed - if fixed it need be - or even improved, as long as obfuscation and veiled rhetoric are encouraged and rewarded. I do not think the process is broken. It still largely functions as designed by inviting conflict or accommodation between the branches and even within the Senate and by subjecting the operations of the process to public scrutiny. But lack of candor does not make the process work better; it makes the process more frustrating. The confirmation process works best when it functions transparently and all parties may be held accountable for what they say and do.

I. WHY THE ROBERTS AND ALITO CONFIRMATION PROCEEDINGS WERE DISTINCTIVE

The confirmation proceedings for Chief Justice Roberts and Justice Alito were distinctive in at least three major respects. First, the proceedings were distinctive for the new rhetoric employed for describing proper judging. Chief Justice Roberts did not speak of judging in traditional terms. Instead, he used simple, colloquial, politically appealing language to describe his understanding of what judges should do. He suggested that a justice ought to act with "modesty"(fn1) and that judging was analogous to "umpiring."(fn2) He characterized himself as committed to "bottom-up" rather than "top-down" judging.(fn3) He was careful not to explain these references in any significant detail, and many senators followed suit. Senators supporting his nomination spoke admiringly of his intellectual abilities and academic achievements, his distinguished record of Supreme Court advocacy, and his "heart."(fn4) More than a few senators (and commentators) were dazzled by his eloquence, confidence, and endurance as a witness before the Judiciary Committee.(fn5) Similarly, Justice Alito avoided detailed discussions of his judicial philosophy. He spoke largely in platitudes about how he would perform his duties as a Supreme Court justice,(fn6) and senators supporting his nomination emphasized his "heart," bipartisan accolades from his fellow judges and former law clerks, and his character.(fn7)

Second, John Roberts made history more than once during the summer and fall of 2005. He is the only person ever nominated for each of two concurrent vacancies on the Court. Recall that the Senate Judiciary Committee was just about to start its proceedings on Roberts' nomination as an Associate Justice when President Bush nominated him to replace Chief Justice William Rehnquist. (Had Rehnquist lived and Roberts been confirmed as Justice O'Connor's replacement, Roberts would have held the distinction of being the first person ever to have sat on the Court with the justice for whom he had clerked.) Roberts is the second youngest person to be appointed as Chief Justice and is the youngest person to have been nominated as Chief Justice since John Marshall was nominated at the age of forty-five in 1801. Appointed at the age of fifty as Chief Justice, Roberts has a good chance of becoming one of the longest serving justices ever.

Third, the Roberts and Alito confirmation hearings were distinctive for what was not said publicly. When he was running for re-election, President George W. Bush promised to appoint "strict constructionists" to the Court,(fn8) though he never explained what he meant by those terms. Before more than one audience of supporters, the President left the impression that Justices Scalia and Thomas would serve as models for his appointments, but he did not mention either as a model at the time he nominated Roberts or Alito. Nor did the President ever describe Roberts or Alito as a "strict constructionist." During their respective confirmation hearings, Roberts and Alito refrained from describing themselves as "strict constructionists," and none of the senators supporting their nominations described them as "strict constructionists." Nor did the nominees or their supporters suggest they were like, or in the mold of, Justice Scalia or Justice Thomas. Chief Justice Roberts jokingly dismissed the comparisons.(fn9)

Particularly conspicuous by its absence throughout the hearings was any extended discussion of the nominees' judicial philosophy. In the past, judicial nominees have gotten into trouble when they described themselves as originalists or as rigidly committed to original meaning or neutral principles. Chief Justice Roberts explicitly refused to put a label on his approach to deciding cases. He rejected any commitment to a "grand" theory of constitutional law requiring construing the Constitution in terms of a single unifying concept, such as originalism.(fn10) One looks in vain in Roberts' and Alito's confirmation hearings for any description of them as "originalists" or as approaching cases in a manner like Justice Scalia or Justice Thomas. While a few senators and supportive witnesses described the nominees as "conservative,"(fn11) the label was left largely unexplained,(fn12) and most supporting senators and witnesses studiously avoided labeling the nominees at all.

Almost all the Republican senators on the Judiciary Committee encouraged the nominees to refrain from answering questions about specific issues remotely likely to come before them; and some cited Justice Ruth Bader Ginsburg as a model for not answering specific questions about what she would do if confirmed to the Court.(fn13) A few senators went further. Some, such as Senator Mike DeWine, R.-Ohio, suggested shortly after Alito's nomination that his confirmation would help to bury the Senate's rejection of Bork as a precedent. Senator Brownback, R.-Kansas, expressed pleasure with the nomination early and often on the basis of the approach he expected Justice Alito to follow in interpreting the Constitution.

It is easy to understand why the nominees and their supporters had no incentive for discussing their judicial philosophies in detail. With fifty Republicans in the Senate, President Bush had the numbers on his side: As long as most Republicans kept in line, his nominees were going to be confirmed. Only a really stupid blunder or stupendous revelation might have derailed either nomination, but, not surprisingly, neither occurred. Moreover, the possibility of a filibuster was never serious. Earlier in the year, the so-called Gang of 14 in the Senate had averted the "nuclear option" by agreeing not to allow any judicial filibusters except in "extraordinary circumstances." A few Republican members of the Gang of 14 openly declared they did not believe either the Roberts or Alito nomination met their understanding of the "extraordinary circumstances" required by the agreement for a judicial filibuster. Consequently, any senators contemplating filibustering either nomination knew at the outset of the hearings they almost certainly lacked the requisite support to mount a successful filibuster or to defeat the nuclear option. With the knowledge that a judicial filibuster was extremely unlikely, Roberts and Alito erred on the side of saying too little rather than too much in their respective hearings. No nominee has ever been rejected for saying too little to the Committee; Bork was a dramatic example of the problems a nominee could cause for himself by talking too much. The nominees made themselves the smallest targets possible in their respective hearings, and each succeeded.

Moreover, the nominees distanced themselves from the few potentially embarrassing public...