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Let the Nominee Stay Home—A Commentary by Stephen L. Carter ’79

The following commentary was published in The New York Times on May 10, 2009.

Let the Nominee Stay Home
By Stephen L. Carter ’79

Any day now, President Obama is expected to nominate a successor to Justice David Souter. After that, the summer will unfold according to ritual. The nominee’s supporters will make absurdly glowing claims about his or her qualifications, the opponents will propound patently ridiculous charges of radicalism, bias or incompetence, and the nation will move on to the strangest spectacle of all — the Supreme Court confirmation hearing.

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.”

Today, the hearings continue to follow the same model that they did half a century ago, when the Dixiecrats invented them. Senators ask about the nominee’s views on a variety of cases, and the nominee respectfully declines to answer. Then the senators ask about judicial philosophy, and the nominee dances a bit, murmurs a few plain-vanilla reassurances, then clams up. We get no new information.

This should not be a surprise. That the nominees decline to answer is perfectly sensible. There is nothing to be gained. The only nominee in history who engaged the committee at length about his views was Robert Bork in 1987, and history records no Justice Bork. Indeed, if the nominees did answer the senators’ questions, future litigants might face a court with some members who had promised, under oath, to vote a certain way on the matter in question.

The hearings also bring out the worst in advocates and politicians alike. The transcripts of the Marshall hearings in 1967 drip with vitriol. More recently, there is the case of Senator Arlen Specter, lately known for switching to the Democratic Party, but whom some of us remember for his unpardonable bullying of Anita Hill during the 1991 hearings on Clarence Thomas’s nomination. For most of the nation’s history we avoided the most farcical aspects of today’s confirmation circuses through the simple device of never having the nominee appear. Maybe it is time to consider returning to that simpler system.

It would be easy enough to make this change. The Judiciary Committee could just announce that, henceforth, the presence of the nominee is unnecessary. The rest of the process could grind on as usual. We could still research the background of potential justices. We could still debate the nominee’s qualifications, whether with high motives or low. We could still offer our dire predictions on the nominee’s likely votes.

Organizations that run focus groups to help nominees shape their messages could continue that shadowy practice. Lawyers and scholars and activists who line up to testify would be free to do so. In many ways, the process would be exactly what it is now, with a notable exception. The nominee would never be required to sit before the television lights and dance around the committee’s questions.

One might reasonably ask why any of this matters. Why shouldn’t a man or woman hoping to spend a quarter-century or so as a Supreme Court justice be willing to spend a day or two refusing, under oath, to tell us anything whatsoever? The reason is this: Each time we claim to be focusing the nation’s attention on crucial questions of constitutional philosophy, what we really do is reinforce the notion that the justices are somehow there to do “our” bidding, to reflect “our” values in their votes.

Whenever someone suggests that the court should mirror the nation’s values, we should remember that in 1954, school integration was hardly a popular cause. Had those nine justices been appointed to reflect the views of the nation on constitutional matters, the Dixiecrats might never have started the whole tawdry process of questioning the nominee, because Brown would most likely have been decided the other way.

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