The History of Supreme Court Confirmation Hearings

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Lana Ulrich: [00:00:08] I'm Lana Ulrich, in-house counsel at the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. This week's episode was recorded prior to the start of Judge Kavanaugh's confirmation hearings and is the first in a two part series that will cover the confirmation process. In this episode we explore the history of Supreme Court confirmation hearings, from how the framers envisioned the process to work, notable stories throughout history, to how it works today. Next week we will recap everything we've learned from the Kavanaugh hearings with special guests Nina Totenberg legal affairs correspondent for NPR and Neal Katyal, Partner at Hogan Lovels, law professor and former acting solicitor general. Join us back here next Thursday but until then please enjoy a look back at confirmation hearings past.

Jeffrey Rosen: [00:00:58] I'm Jeffrey Rosen president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the constitution among the American people. As the country prepares for the confirmation hearings of Judge Brett Kavanaugh, we're here today on We the People to discuss the history of Supreme Court confirmation hearings and their constitutional implications. What does the Constitution say about the confirmation process? What did the Framers think? What can history tell us and what can we learn from studying text history about our current situation? Joining us to tackle these crucial questions are two of America's leading experts on the Supreme Court confirmation process. Lori Ringhand is J. Alton Hosch Professor of Law at the University of Georgia where she teaches constitutional and election law. She's co-author of the book Supreme Court Confirmation Hearings and Constitutional Change with Paul Collins. And Adam White is Research Fellow at the Hoover Institution and director of the Center for the Study of the Administrative State at George Mason University's Antonin Scalia Law School. He's the author of many articles about the Supreme Court including one I recommend to We the People listeners like Professor Ringhand's book, Toward the Framers' Understanding of Advice and Consent: An Historical and Textual Inquiry. Lori, Adam thank you so much for joining.

Lori Ringhand: [00:02:28] Thank you. Pleasure to be here.

Adam White: [00:02:30] Thank you.

Rosen: [00:02:31] Adam let's begin with the title of your article. What was the framers understanding of advice and consent and what can the historical and textual inquiry teach us?

White: [00:02:43] Well I'm glad you read the title because I tried to be as careful and restrained in the title when I wrote this, and I wrote this piece a long time ago when I was still a law student. The question was what were the framers getting at, what were they intending or what they did they have in mind when they came up with the idea for the appointment, the process for appointing judges? Namely the president nominates, he gets the advice and consent of the Senate and then he makes his appointment. If you look back at the history of the Constitutional Convention in 1787 this process for appointment not just for judges but for all officers, all heads of departments as well, this was sort of a lacking indicator for the tenor of the Convention as a whole. The process for making appointments was often debated and re-debated and reconsidered in the aftermath of the bigger structural questions about the Constitution itself, the nature of our legislature, one house or two, how would representation be settled in in the houses of Congress? What were the powers of the presidency? And so on. You'd see the convention vote and then reconsider and vote again on different approaches to appointments based on what they had decided or what they were debating on the structural constitution as a whole. So for example early in the Convention when what we call the Virginia Plan was introduced by Edmund Randolph, there was going to be a single national legislature with popular appointment and they debated on whether to just have the national legislature as a whole choose not just the national executive but also judges and other officers and they debated that and then they debated- they voted overwhelmingly with minimal debate to just give the appointment power to the executive who was going to be chosen by by the legislature. They came back and reconsidered that. They thought about appointment by the Senate as the Senate, the modern Senate ended up taking shape as a higher house of Congress not necessarily directly elected by the people. They considered just vesting the appointment power there. Then finally in July of 1787 about halfway through the convention Nathaniel Gorham from the state of Massachusetts said, well here's a suggestion. Why don't we, why don't we do appointment the way it's done in Massachusetts? Namely advice and consent where the executive would appoint after making a nomination and securing the advice and consent of the Senate. Now in Massachusetts, it wasn't the Senate, it was something called the Privy Council, a council of advisers to the executive. But given that the Senate was- of the proposed constitution was- they had in mind a more elite body of statesmen, it made sense to draw an analogy between the Privy Council and the Senate. Now as they made the suggestion in 1787 this was in the immediate aftermath, just seven years after Massachusetts had reformed its own constitution and really had put the Privy Council at the center of the governance alongside the executive especially with respect to record keeping and appointments and so on and so this was an important innovation in Massachusetts. When Gorham proposed it it was significant. Now the problem is in Madison's notes for the Constitution, they say that Gorham made the suggestion based on the example of Massachusetts but nobody explained what exactly the Massachusetts program was or at least why they had arrived on this and how it operated in Massachusetts. So the origin of my paper back in 2005, 2006 since I was in Massachusetts at the time was to go back and look at the records of the Privy Council and see how if at all it handled these confirmation votes. That ended up being the focus of my paper in terms of whether or not there was an obligation of the Senate to vote or not. But just one last thing, I don't mean to filibuster but after Gorham's proposal came up, James Madison had an interesting counterproposal. He suggested that instead of advice and consent, the better approach might be for the president to make a nomination and for that nomination to go into effect if the Senate didn't veto the president's nomination. There were a couple of iterations of this proposal and he'd never specified the timeframe for the Senate to muster a vote. I think I recall correctly he might have originally proposed a majority vote or maybe a super majority vote and then that changed. But the point is that Madison's alternative to advice and consent was for the president to get his nomination unless the Senate affirmatively acted to reject that nomination which I think is interesting and in some ways telling for the modern approach. But that approach failed and ultimately as we know the constitution went with the nomination and then advice and consent model.

Rosen: [00:07:40] Fascinating. Thank you so much for that great introduction. We the People listeners you can check out Adam's paper in the Harvard Journal of Law and Public Policy and it's so interesting to learn that the Massachusetts model was the basis for Gorham's proposal. You can also go online at Treasures.constitutioncenter.org where we have the evolving first drafts of the text of the Constitution and you can see as Adam said that James Wilson originally proposed that the Senate should have the power to appoint and as late as the committee of detail report, the Senate too has both treaty making power and the power to appoint Supreme Court justices so it was something of a late breaking addition of the president. Lori what can you add to the original understanding of the appointment process and how the Framers expected that the president and the Senate would interact.

Ringhand: [00:08:32] Sure. I think Adam's history is really interesting because what it shows is that in all of these different variations the different things that were considered and rejected and then ultimately adopted by the Founders, in all of these articulations of the options, we see a consistent desire to have a type of indirect accountability to the elected branches of government baked into that cake. So all of these visions foresaw a system in which the process would in one sense be inherently political because it would be managed and undertaken by political elected officials. And that's fascinating in a couple of ways because the Founders famously were writing in a moment in time in which they believed they had designed a system of government that would be immune from the negative consequences and negative effects of the development of political parties. They thought they were going to be able to avoid that particular type of factionalism and were designing a constitution to battle different types of factions. And of course that very very quickly broke down and we, almost immediately after the enactment of the Constitution and the Washington administration, we very quickly had what became kind of traditional political parties as we know them develop. So the effect of that on the Supreme Court appointments process was that elected officials from a very, very early point in our history, they have always known that who sits on the Court matters and they've always approached the appointments process accordingly. You know President Washington had one of his nominees rejected. So did James Madison. When Jefferson finally seized power away from the Federalists as their third president, there are these letters, he was writing just with glee to his friends about how they'd be able to grab back control of the judiciary. And of course the Federalists themselves- President Adams before he tried to- before he left office, enacted the midnight judges act which the whole purpose of was to stack the federal judiciary with like minded partisans of the outgoing administration. So the political awareness that who sits on the court matters is one of the things that hasn't changed in our process that's been there from the very beginning.

Rosen: [00:11:30] Very interesting. Thanks so much for that context and for reminding us that the Framers didn't anticipate the rise of political parties and that transformed the confirmation process from the beginning.

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Rosen: [00:12:43] Adam let's jump into the history that Lori has teed up as she suggests the outgoing Federalists reduced the size of the Supreme Court to deny the incoming Republicans led by Jefferson the ability to make Supreme Court appointments. Tell us about some of the most hotly contested early Supreme Court nominations in the Washington, Madison or other administrations and how things played out.

White: [00:13:06] Well and let me just amplify a point that she made at the end about the nature of judges and the importance of the type of people being selected. That was another- that was in the design of advice and consent as Hamilton later defended the Federalist. He stressed that the advice and consent model, not just for judges but for all appointments, it was intended to ensure that men and women of high character would make it through, that the appointment process wouldn't just be sort of a crony process of a president picking his or her friends, but rather the Senate was there to be a check on that impulse. And I think it's also reflected in Federalist 78, the famous Federalist Paper on the judiciary. That's where Hamilton talks about the courts being the least dangerous branch. He talks about courts having neither force nor will but merely judgment but later in that paper a part that gets much less attention, he talks about the structure of the judiciary, their life tenure and so on being necessary to ensure that the best kind of lawyers become judges. Ones that are learned in the law, ones that consider themselves bound down by the voluminous codes of laws and precedents and so on. You had Hamilton in that aspect writing about the judiciary and writing about the appointment process and reminding us that it's not just to allow anybody in to become a judge but rather to maximize the chance that we'll get the best kind of judges. And he had- at least he had a certain kind of judge in mind then- especially avoiding like I said the crony picks and so on, so I think that's important. Jefferson's rise to the presidency gave the Republicans the first opportunity to try to relitigate the Federalist judiciary. First in terms of the structure of the court then after that, in terms of the sitting justices, famously they tried to remove Justice Samuel Chase through impeachment proceedings. I have to admit off the top of my head I'm forgetting which nominations were sunk in the 19th century. I think as we've already discussed it's true that a number of them did fail both before and after the Civil War. But I'm not sure how much insight I can lend on specifically which ones were sunk or why.

Rosen: [00:15:28] Well let's find out from Lori who has written this great book on the history and Lori you can tell us which one were sunk and why and what message we should take from this effort to reduce the size of the court by Jefferson and also similar struggles around the Civil War.

Ringhand: [00:15:49] Yeah so there was actually a higher rejection rate in the first about 150 years of the country than there has been since then of presidential appointments or nominations that were affirmatively rejected by the Senate. It was about 20 percent in our first kind of century. And since then overall we're at about 10 percent of actual rejections where the Senate held a vote and voted the nominee down. And that's about twelve of about 114 who have sat on the Supreme Court so that's not a small number. A somewhat surprising number of presidential nominations have been affirmatively rejected by the Senate. There's also another group of nominations that are either withdrawn or not acted on because it became clear that they weren't going to be confirmed. If you add those in the number's about 25 percent of presidential nominations that were not advanced or were affirmatively rejected by the Senate. And who they are, you know it's quite a cross section of issues, controversies, problems. Washington- the nominee that Washington had rejected was Rutledge and he was shot down. He was affirmatively rejected on a vote by the Senate because of his opposition to the Jay Treaty. He was seen as much too- there was a controversy about the Jay Treaty which ended the- which was our treaty with Britain at the end of the war. And there were geopolitics involved with it in the battles between Britain and France, and Rutledge was just seen as way too hostile to the goal of the Jay Treaty and Britain. He was struck down by the Senate, rejected by the Senate, on that grounds. President Jackson, he had to wait for the Senate to flip. He waited until a midterm election passed in order to get his chief justice confirmed. President Tyler was a very very weak president. He became president only- he was vice president and became president only when President Harrison died. He had just a terrible time and I think ultimately had maybe five open nominations and only managed to get one through the Senate. And then of course in more recent times just in terms of nominations that were unsuccessful, Harriet Miers, one of the second President Bush nominees, was sank or withdrawn probably because, mainly because of opposition within her own party to that nomination. And just a smidge before that we had the famous second Justice Harlan who was appointed by Eisenhower. He didn't get out of committee the first time around. He was perceived as too liberal and had to sit in committee for an election cycle to pass. So there's been a host of them.

Rosen: [00:18:59] Absolutely fascinating. Adam, you know another beat on the 19th century history, you, in arguing that the founding debates don't provide any indication of an expectation that the Senate would be required to vote on nominees, note that presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations the vast majority of them, 25, received no up or down vote. Sticking with the 19th century for another beat or so just because there's so much to mine there, what should we make of the fact that nominees seem to be rejected on the basis of pure political disagreement like Rutledge's opposition to the Jay Treaty, didn't get votes and things seem pretty partisan.

White: [00:19:38] Yeah I think we should take care to stress that of that number, the nominations that didn't receive a vote, some of them did end up getting renominated and we're talking about nominations not nominees. And as was just mentioned you know Justice Harlan for example eventually got confirmed. It's an extremely small number that just disappeared altogether without a vote. But there was more than one. From the very beginning, as I said earlier, the idea was that the Senate was there to ensure that the nominees were qualified. That was the idea. But I don't want to put too rose colored glasses on this. The senators vote or don't vote for a variety of reasons. And the Senate's a political body. And so even though the judicial appointment process was shielded from direct appointment by the people themselves and by their nearest representatives like so much of our structural constitution that was intended to create a process that would turn passion into reason, the fact is that politics inheres and everything that the Senate does. And so I think you'd be wrong to suggest that the senators weren't expected to vote with an eye to politics. And I think it's hard, looking at the record, to not say that they didn't in some cases or in all cases vote with an eye to politics. That side of things never troubled me that much. I always thought it was a political body performing a political function.

Rosen: [00:21:07] Lori are there other major 19th century battles tonight to note especially around the size of the court around the time of the Civil War?

Ringhand: [00:21:15] The Civil War was not a- the Supreme Court was on the losing side of the Civil War. And that created a lot of tension around appointments. Both immediately before and immediately after that conflict. And it was not a- it was obviously a terrible time for the country and a terrible time for the Court.

Rosen: [00:21:45] And let's turn to the question of hearings. It wasn't until the late 19th century that there was any private hearing held at all for a nominee who was subsequently rejected. And the first public hearing was that of Louis Brandeis, a great hero of the We the People podcast and mine, who didn't appear in person following the custom that nominees not appear in person. The first nominee to appear in person was Felix Frankfurter in 1939 who faced allegations of disloyalty over his civil libertarian sympathies. So Adam tell us during this raucous 19th century in which all these nominees were being rejected, was it just done behind closed doors without hearings and how did the tradition of hearings evolve?

White: [00:22:35] Well that's right. None of this was public, at least none of the proceedings were in public until we get into the 20th century. Everything else back then was done through votes or through the lack of vote. As you- you mention that it was Justice Brandeis who was the first public hearing. And of course it was done as many would say for the wrong reason, right. That the concerns about Justice Brandeis were being inflamed by his critics either because of his progressive politics, his work as a progressive reformer or because of outright anti-Semitism towards the nominee. And it was that impulse that turned this from a behind the scenes political process into a public political process. And then of course Frankfurter, questions about his loyalty, we have the same thing happening. Now today, there's other complaints obviously about the confirmation process. And maybe we'll get to that later but I do think it is interesting that although the process became more public in the 20th century and I think that's a good development, it didn't happen necessarily for the right reasons. It probably happened for the wrong reasons.

Rosen: [00:23:46] Lori what more can you tell us about the early controversies in particular about the confirmation hearings for Felix Frankfurter?

Ringhand: [00:23:58] Yeah I- to pick up on a point that Adam just made about the process becoming more public, one of the- Felix Frankfurter was the first nominee to appear before the committee in an open session and take unrestricted questions. Prior nominees had either not appeared themselves or they had appeared in private session or they had appeared to only answer very particular questions about a well-defined narrow topic that the Senate had very precise questions about. So Felix Frankfurter in 1939 was the first person who came and openly testified. And there really were two reasons that that choice was made. The first was unique or specific to the Frankfurter confirmation. The first day of hearings opened. The senators were doing their thing. Professor at the time Frankfurter was not there and he was just getting beaten up on the Senate floor. The senators were calling him a Communist. They were calling him disloyal to America. Felix Frankfurter came to America as an immigrant when he was seven or eight years old. He didn't speak English. He was of course Jewish. So the anti-Semitism was also in play here as it was for Brandeis. And he was just getting shredded on the floor of the Senate and the president's people called and said, you have got to go in there and defend yourself. You've got to go in and confirm to the senators and say out loud in public that you are loyal to America and that you will you know duly interpret and apply the Constitution of the United States. So he did. He went in and he sat down and he took these really quite hostile questions and ended up basically affirming his Americanness and saying yes this is who I am and I'm loyal to this country and I will do my duty as a Supreme Court Justice. So that was the first reason that was specific to the hearings. The second reason though and this gets to Adam's point about the process becoming more public as democratic accountability grew in a variety of ways, and that second reason is this: that the hearing before Frankfurter was Hugo Black's. And Hugo Black as you may remember was- had been a sitting senator and he was confirmed without- he was confirmed very very quickly and voted on and approved by the Senate very very quickly and without public disclosure of a thing that the senators knew, which was that he apparently was a continuing member, he had not declined or refused a lifelong membership in the Ku Klux Klan. That news came out after the Senate approved his appointment to the Court. And it was incredibly controversial. The journalist who broke the story actually won a Pulitzer for it. And these senators and the chair of the Judiciary Committee at the time promised publicly and in response to this criticism that going forward they would conduct a more open process so the people could be better informed about the nominees that were being considered.

Rosen: [00:27:23] If I could just appreciatively thank Lori for noting the Black nomination and encourage our listeners, go onto YouTube and check out the movie that Black made after the story was broken that he joined the Klan. He went onto national television and he said, I did join the Klan, I never rejoined. That is the last I have to say on the matter. And everyone said Bravo, you've done it Justice Black, you've completely let all our doubts aside and they allowed him to continue to serve. It was a much more deferential time. Adam what do you make of the Black nomination? And now we're beginning to move up to a world where the confirmation process is being transformed by the media, by public scrutiny. And how did it become more polarized as a result?

White: [00:28:02] I'm so glad we discussed the Black nomination. It was an awful moment politically and to use the famous line from Justice Brandeis, sunshine being the best disinfectant. For all of our complaints about the nomination- the confirmation hearings or everything in the last several decades, I think it's important to remember that bringing this process out into the public changed not just the composition of the nominees or the ways that- the sorts of people who are nominated- it also in the long run had a profound impact on the types of questions that senators would ask. I mean who knows what Senators have in their own minds as they're voting for or against the nominee. But at least in the process of the confirmation hearing in public, bringing the process out in public from Brandeis through Black onto Frankfurter would in the long run have a profound impact on the conduct of the senators themselves. And I think that's a good thing. Again something that happened for- originally for bad reasons ultimately proved to be very good in the long run for this.

Rosen: [00:29:14] Fascinating. So we're beginning to have public hearings and first there's radio and then Lori tell us, when were the first televised hearings? And we haven't gotten up to 1987 to Bork yet but tell us about the hearings between Black and Bork. Some were controversial. Others were not. They seemed to vote more on qualifications than on judicial philosophy. How would you describe those hearings?

Ringhand: [00:29:39] Well I mean I think it's always- the nominations by the president and the votes by the Senate have always been a mix of qualifications, constitutional consequences, considerations and a more raw form of politics. All of those things have been in the mix and you see that, Adam mentioned kind of the types of questions that the senators ask. And What you see is this- when you read the transcripts over time from 1939 forward what you see is this interesting combination of similarity and difference, right. As you read through these, the commonality is the senators have always been asking nominees about issues that are relevant to their constituents in a given moment in time. So the early hearings- they weren't discourses on interpretive theory. Right. I mean they were always asking about constitutional consequences and the- how the- what different constitutional choices would mean for the important issues of the day. That's not new. What you see is that those issues themselves change. It went from being the threat of international communism which you know as we've talked about was very present in the Frankfurter hearing. It was also very present in William Brennan's hearing. Joe McCarthy kind of at the end of his career was allowed as a matter of senatorial courtesy to come and question William Brennan who had actually been sitting in a recess appointment for a while so he really didn't answer very many questions. Then McCarthy was just going at him about the threat of international communism and whether or not the first amendment offered protection to American Communists. And then we go into- we see those type of concerns kind of roll into the emerging Civil Rights movement where you see more questions about equality, racial equality, gender equality, sexual orientation rights. You see those issues start to come out more. So what has always been the same is that the senators talk the language of- they talk about the Constitution in the language of contemporary politics and what matters to their people and their constituents in that moment in time. But what those issues are themselves change. It's really- it's fascinating to see that play forward.

Rosen: [00:32:19] Absolutely fascinating. Adam tell us more about the pre Bork hearings. There was the famous rejection of Abe Fortas for financial scandals and even before that Senator Strom Thurmond famously said to Fortas, Escobedo I want that name to ring in your ears. He was referring to the defendant allegedly freed by a soft on crime Warren Court. So the Supreme Court is becoming a political football and the nominees are beginning to feel that and yet we still have a tradition of senators from one party voting for nominees from the other. So what can you tell us about those hearings?

White: [00:32:53] And using Bork as the reference point I think is important for a reason that might not be obvious. Until the Bork hearing or- and with Scalia before that, you didn't have sort of the Originalist methodology being so prominent. You didn't have any particular interpretive methodology being so prominent. You couldn't even really talk in terms of a living Constitution since talk about a living Constitution is usually you know done in contrast to another methodology like Originalism. So until that took the stage in the 80s you didn't have the same basis for asking questions about judicial decision making. So you did have broader questions about policy and precedent. Now Chief Justice Rehnquist when he was nominated to be Chief Justice, his hearings were inflamed by the questions over his role as a clerk in Brown v. Board, a clerk for Justice Robert Jackson during Brown v. Board of Education, or Rehnquist's advice to Jackson on Brown v. Board and the memo that Jackson had been critical of the idea that the Constitution prohibited segregated schools. So that was the sort of thing that inflamed Rehnquist. Before that you had just much looser questions about constitutional precedents. Again as Lori said with reference to the political hot button topics of the day. So Bork becomes a turning point not just because of what we now think of the nomination being famous for all the controversy around Bork, but also because before that you didn't have this touchstone of interpretive methodology to become itself a centerpiece of the questions.

Rosen: [00:34:45] That is a fascinating point and at a debate at the Cato Institute recently I learned from Judge Doug Ginsburg that really it wasn't until the 80s and speech about Originalism that that was put on the table as you suggested as a methodology. And now I'll just reveal and Zelig-like moment I had as a young kid before I joined the Constitution Center and lost all political opinions whatsoever, I was a summer intern for Senator Joe Biden of all people during the Bork hearings. Talk about being a fly on the wall. And had a very minor footnote role in helping do some research for the speech that Biden gave asserting the Senate's right to consider the judicial philosophy of nominees which until that point as you say Adam had been a contested point and it was an important milestone. So Lori how important was that speech of Senator Biden and how transformative was the Senate's decision to start considering judicial philosophy post Bork?

Ringhand: [00:35:42] Today we often talk about the Bork hearing as if it was kind of the moment that changed everything. But it's not really clear that that's true. Of course there- as we've talked about there were lots of rejected nominees before Bork and I think the contestedness, the hostility of the hearings and the process is really more cyclical than linear. There have always been hotly contested hearings and there's always been periods when the process has gone more smoothly. And I think what we see is that when you have a deeply divided partisan moment politically in the country as a whole or you have a seat like Bork's seat which of course became the Kennedy seat which is now again the seat that's open right now- when you have a seat that is going to change the composition of the court in ways that people perceive as affecting outcomes, those hearings are going to be much more controversial. So it's more of an ebb and a flow than a march toward hostility over time.

Rosen: [00:36:58] That is a very provocative, interesting point. Adam, Lori suggests that Bork was not a transformation but it really had more to do with the consequences of the seat than anything that changed about the process and indeed Justice Ginsburg and Breyer were confirmed with broad bipartisan majorities and so forth. So do you agree or disagree with Lori that it's more important which particular seat is being considered rather than a transformation in the post Bork process?

White: [00:37:25] Well yeah I think Lori is right for both reasons that she identified, that so much turns both on the specific seat that's being filled and on the broader politics of the day. All these nominations happen in the context of their political moment. So when we think of Bork, or when people speak of Bork's nomination as being the start of something, a modern era maybe, that's true only insofar as we're talking about a much more limited window of time. Over the arc of constitutional history, there's been so many controversial nominees, many of them rejected. Bork isn't remarkable in that sense. But I do think that Bork's nomination was more hotly contested and contested in different terms than well definitely Scalia before him, even more so than than Rehnquist before him. And that may have ushered in what we now think of as a modern moment. But as Lori says it wasn't itself in the long run of things a singular rejection.

Rosen: [00:38:31] Very interesting area of agreement and interesting insight. Lori nevertheless we seem now to be at a point where you can't get a nominee confirmed to the Supreme Court unless you hold both the White House and the Senate and nominees will not get any votes at all from the opposite party for both the seat that went to Justice Gorsuch and the Kavanaugh seat as well or at least very very few votes. Is that historically unprecedented or not?

Ringhand: [00:39:02] No it's not historically unprecedented. We've had those periods of time in the past where presidents have held back nominations, they have moderated their nominations to accommodate a senate held by the opposition party. So I think what we see is that there are- these confirmations are very embedded in their moment in time. And right now we're in a moment in time where the court is seen as a prize to be fought for and won. And that has in a moment of intense partisan disagreement in the country as a whole that's led to a situation where senators- I'm sorry presidents, presidents don't have a lot of incentives to nominate consensus candidates right now because of the way that the greater political environment is functioning or disfunctioning in the country. And I think this too will pass.

Rosen: [00:40:13] Wow a wonderful moment of optimism on this very optimistic podcast. Adam, well I guess I'll just ask whether you share Lori's optimism that this too shall pass, or do you believe that there are certain structural changes in the Senate like the elimination of the filibuster for judicial nominations that make any hope of reconstructing bipartisan comity elusive?

White: [00:40:34] Well I hate to engage in fierce agreement on a podcast but I do want to start with another great point that Lori makes: that in all- when we focus on the Senate, we don't always keep our eye on the ways in which a president might preemptively calibrate his own nominee- choice of nominee to maximize the chance of, or at least to ensure a chance of confirmation. The namesake of the institution where I work, President Hoover, famously nominated Judge Cardozo to the Supreme Court late in his own time on the Supreme Court- a nomination that was recognized at the time as one that was less about ideological alignment with the president and the nominee and rather of the president picking a strong nominee who he thought would secure the confirmation, the advice and consent of the Senate in a politically heated year. And so it is important to keep an eye- keep in mind the fact that the president's own actions might be behind the scenes shaped by the political environment. Of course then in turn the political environment does shape everything else and I think you're right to ask whether the structural changes within the Senate have changed it. I mean the nature of who is being elected to the senators has mattered immensely as the political parties in this time have become more sorted going back to the 1970s, more ideologically sorted. That's going to have an impact on it. Senators' willingness to threaten or then make changes to Senate procedure obviously has been important and it's had an iterative effect. There weren't- there were very few if any filibusters of Supreme Court nominees as I understand it, Lori might know better. But there were there were no outright filibusters in terms of cloture votes until much more recently and then as that became a possible tool, one that was threatened by various senators, there was the counter response of well then we'll change the rules to end filibusters and so on. We have this iterative effect. But just to focus briefly on I thought some interesting choice of words by Lori, she said the court's come to be seen as a prize, the spoils for the victor of a presidential election, something the president owes his base. That's true. I think it's also true that the court is seen as a prize in part because the court's made itself a prize and I think we have to keep in mind that the changing politics of Supreme Court nominations has also been a function of the work of the Supreme Court or at least a function of how the work of the Supreme Court is seen by the public. And this is a point that Justice Scalia made so eloquently in his dissent, at the end of his dissent in Planned Parenthood vs. Casey in '92. At the very end of that opinion there's this remarkable passage I'd urge your listeners to take a look at. This is in the immediate aftermath of the Thomas hearings and you have justices concerned about the political atmosphere surrounding the court and the protests and so on. And Justice Scalia goes out of his way in this dissent to say that those who are concerned that Supreme Court nominations are becoming too hotly contested, too politically venomous must keep in mind that they will remain that way so long as the court makes value judgments on behalf of the country and their constitutional decisions reflect that. Now we can- it's for another time to debate whether Justice Scalia was right in his diagnosis about what the court was doing. But I think it is fair to say that Justice Scalia was right that the more that the court is seen by the public as a political adjudicator the more that the people will demand that their elected officials make the confirmation process more political. As Scalia said, if the people think that the court is deciding things based on value judgments, well the people are perfectly capable of making value judgments of their own and they'll see to that through the confirmation process. That I think is the last ingredient or one of the last ingredients to keep in mind, that as either the court's work or the public's perception of the court's work changed in recent decades, that in turn I think is a major ingredient in the current composition of the confirmation process.

Rosen: [00:44:49] Thank you so much for calling- I can't resist taking the invitation. You called my Justice Scalia's vivid searing dissent in the Casey case. Listeners can of course check it out. And he calls to mind the portrait of Roger Taney- Chief Justice Tany who wrote the Dred Scott decision, hanging in the Harvard Law School library and Scalia says he sits facing the viewer and staring straight out. There seemed to be on his face and in his deep set eyes an expression of profound sadness and disillusionment. Perhaps he always looked that way even when dwelling on the happiest of thoughts. But those who know how the luster of his great chief justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case, its soon to be played out consequences for the nation burning on his mind. And it's also relevant Adam because by some measures we are more polarized today than at any time since the Civil War. In the 1960s there was a 50 percent overlap between the most liberal Republicans and the most conservative Democrats in the Senate. Today there is no overlap. So you're suggesting that the polarization of the country may be playing out in the Senate so that leads me to ask you, Lori, why do you remain optimistic given the extraordinary polarization of the country and the Senate that we can ever put the bipartisan genie back in the bottle?

Ringhand: [00:46:05] Well I'll tell you why I'm somewhat optimistic and then I want to circle back to a point that Adam just made. I'm somewhat optimistic because remember Bork led to Kennedy. Right. When we talk about Bork as the trigger for a new process, the thing that happened immediately after Bork was rejected was Kennedy, a consensus nominee who became a quite idiosyncratic justice was chosen as the new nominee for that seat by President Reagan. And he was confirmed by a Senate held by the Democrats with close to or a unanimous vote. So we are capable of learning things and we are capable of cycling through these processes even though they certainly extract costs as we do it. And even though I think there undoubtedly are better processes that we could get to and perhaps even agree on at some point in our future. So that's the sort of let's call it tempered optimism. Even Bork led to a different type of process in that immediate aftermath. The thing I wanted to circle back to that Adam mentioned when talking about the public's perception of the court as being much more embroiled in more issues. It's a really fascinating point and I think it's worth teasing out a couple of different phenomena that are contributing to that. The words that Adam said that struck me were the "as seen by the public" because of course the Senate- I'm sorry the Court has always been right in the middle of the most hotly contested political issues of the day. It was true- it was true- President Grant for example vowed to stack the court with justices who would overturn the then recent legal tender cases. FDR obviously wanted to stack the court to ensure that the Justices would start striking down his New Deal legislation. The example used by Scalia, Dred Scott, of course that case in the eighteen hundreds before the Civil War- they thought they were solving the problem. Right. So the Justices were always right in the thick of this. There is simply nothing new about the court taking on the most hotly contested cases of the day. What has changed is that the range of issues and the range of people who are coming and claiming kind of a piece of the constitutional pie has expanded to a broader- a wider array of constituencies with a wider array of concerns and kind of hand in hand with the democratization of the process overall, that's meant that the controversies are no longer disputes among elites behind closed doors. They're right here. They involve all of us and we all see them.

Rosen: [00:49:38] Very important point. So Adam given the fact as we've been discussing in particular this last point Lori makes about the democratization of the confirmation process and the breadth of constituents that are involved, what's the optimistic scenario? In the next 50 years, sketch out a confirmation process you could imagine where a nominee nominated by a democratic president gets Republican votes or vice versa.

White: [00:50:11] That's imponderable. First Of all I never said that I was as optimistic as she is.

Rosen: [00:50:13] You said you're sort of optimistic.

White: [00:50:17] I am sort of optimistic. I think- first of all if a trend can't continue forever it won't. Right now the trend line is for these things to become ever more hotly contested. And there is- there is at some point there has to be a breaking point in all this. I don't know what it is. I'm sure it will get worse before it gets much better. I do think that one of the things we need to keep in mind again, keeping in mind that the confirmation process tracks the structural questions that surround- the structural, constitutional questions around it, you have this parallel debate about term limits for Justices. I don't see that happening in the near future but I wouldn't say that it won't happen in the long run. As justices live longer and longer, if there is a movement to reform the Court, it would require a constitutional amendment to shorten or to limit the tenure of a Justice, that might help diffuse things That's a long range thought. I would say that one of the reasons why I'm optimistic- one of the more optimistic aspects of the current situation that I want to remind us of is that as bad and poisonous as the process now seems and often is- and I do think that given the political environment we're in right now, I think the Kavanaugh hearing although it's rather quiet as he does his Senate visits, I think it's going to be astonishingly heated and poisonous as we get through September. I think it's important to shine a light on the good things that happen right now. And I like to remind people that at the confirmation hearing the senators are going to ask questions about the court and the Constitution, about precedents. They're even going to ask sort of metaphysical questions about the nature of precedent itself. And so in the midst of all the bad things that are happening we actually do see great things happening. One moment where the country as a whole and the senators and the nominee pause to reflect upon and debate and ask questions about these first principles, issues. And as we discussed earlier in many respects what we have now in that respect what we have right now is a great improvement upon the behind the scenes process that we had a century ago where senators were free to vote for or against the nomination not just for the best of reasons but for the absolute worst of reasons. And so even if what we have right now continues to involve a lot of personal attacks from either direction, a lot of invective, a lot of political heat, at the same time we see with each passing nomination ever more sophisticated questions about precedent, about methodology, about the work of the Court. And in that respect even as things get better they also get worse- sorry even as things get worse in the most obvious respects they also get much better from nomination to nomination in subtle respects.

Rosen: [00:53:14] Wonderful note of optimism and you are- you persuasively argue that the post Bork hearings have indeed illuminated the judicial philosophy of the nominees for those who are paying attention and I want listeners as the Kavanaugh hearings begin to pay close attention to the hearings and to learn about the judicial philosophy of the nominee from the questions, cutting through the political noise and always focusing on questions of constitutional methodology and interpretation. Lori the last word is to you in this very rich and illuminating historical conversation. What notes for optimism do you see both in the current democratized process and the process over the coming decades?

Ringhand: [00:53:57] Yeah well I'll borrow a quote from Professor now Dean Heather Gerken talking about a different type of election law. She coined the term that one of the issues that we frequently face when trying to figure out how to do things better is the here to there problem. There can be agreement perhaps on something like 18 year term limits whether required or voluntary on the part of the Justices. There can be agreement about better processes and better ways of doing things. The problem is getting from where we are to where we want to be, the here to there problem. And with the current confirmations process the here to there problem manifests as neither side feels like it can unilaterally disarm. So we have kind of these no holds barred fights. And as I said earlier I think that is cyclical. I think it's a lot of things happening at this particular moment in time with this particular seat on this particular court. So it's not an inevitable trajectory toward more and more hostility. But I think what we're going to see and here is my optimist- my optimistic prediction. I think what we're going to see in the aftermath of this current fight may be some groping toward agreement about the role of the court, the possibility that term limits might be something we want to move toward to take some of the heat off the confirmation process regardless of the you know the age of the justices and whether they're living longer or not the current process just puts so much pressure on the politics of retirement, the politics of the nominations and taking some of that pressure out of the system I think would generate a better process and a more palatable court.

Rosen: [00:56:12] Thank you so much Lori Ringhand and Adam White for a illuminating deep conversation. You have provided us with historical context. You have taught us that our current vexations are not unprecedented and you have given us grounds for modified rapture, modified optimism that things might improve in future. Lori, Adam thank you so much for joining us.

Ringhand: [00:56:37] Thank you so much.

White: [00:56:38] Thanks Jeff.

Rosen: [00:56:42] Today's show was engineered by Greg Scheckler and produced by Madison Poulter and Scott Bomboy. Research was provided by Lana Ulrich and the constitutional content team of the National Constitution Center. Friends, dear We the People listeners, the Constitution Center is a private nonprofit. We rely on the generosity and passionate engagement of people across the country who are inspired by our non-partisan mission of constitutional education debate. Please consider becoming a member to support our work including this podcast. Visit Constitution Center.org/membership to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.