October 4, 2020 12:31PM

My New Book on Supreme Court Confirmation Battles

When Justice Charles Evans Whittaker retired in March 1962 after just over five years on the Supreme Court, John F. Kennedy had his first opportunity to shape the high court. The youthful president selected a man of his own generation, Byron White. White had met JFK in England while on a Rhodes Scholarship—after having been runner‐​up for the Heisman Trophy and spending a year as the highest‐​paid player in the NFL—and the two became fast friends.

White was a vigorous 45 and serving as the deputy attorney general under Robert F. Kennedy. Kennedy formally nominated him on April 3, 1962. Eight days later, White had his confirmation hearing, a quick ninety minutes including introductions and supporting testimony from various bar association officials (during which the nominee doodled on his notepad). What questioning there was largely concerned the nominee’s storied football career; “Whizzer” White was surely the last person to play a professional sport while attending Yale Law School. The judiciary committee unanimously approved him, and later that day so did the Senate as a whole, on a voice vote.

My how times have changed. The battle to confirm Brett Kavanaugh showed that the Supreme Court is now part of the same toxic cloud that envelops all of the nation’s public discourse.

Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on Supreme Court nominations until 1916, a tumultuous year that witnessed the first Jewish nominee and the resignation of a justice to run against a sitting president. It wouldn’t be until 1938 that a nominee testified at his own hearing.

But while the confirmation process may not have always been the spectacle it is today, nominations to the highest court were often contentious political struggles. For the republic’s first century, confirmation battles, including withdrawn and postponed nominations, or those upon which the Senate failed to act—Merrick Garland was by no means unprecedented—were a fairly regular occurrence.

In the 20th century, Presidents Harding, Hoover, Eisenhower, Johnson, Nixon, and Reagan all had failed nominations. FDR never had anyone rejected, although his court‐​packing plan was rejected both in Congress and at the polls. And LBJ’s proposed elevation of Justice Abe Fortas led to the only successful filibuster of a Supreme Court nominee, a bipartisan one over ethical concerns, which wasn’t even a true filibuster because Fortas never had a majority of pledged votes. Douglas Ginsburg withdrew before President Reagan could send his name to the Senate for having smoked marijuana with his law students.

Given the battles we saw over Gorsuch and Kavanaugh, too many people now think of the justices in partisan terms. That’s too bad, but not a surprise when contrasting methods of constitutional and statutory interpretation now largely track identification with parties that are more ideologically sorted than ever.

Even if politics has always been part of the process, and even if more justices were rejected in our country’s first century than in its second, we still feel something is now different. Confirmation hearings are the only time that judges go toe‐​to‐​toe with politicians—so is it all about TV and Twitter, the 24‐​hour news cycle, and the viral video? Is it that legal issues have become more divisive? No, the nomination and confirmation process—an interplay among president, Senate, and outside stakeholders—hasn’t somehow changed beyond the Framers’ recognition, and political rhetoric was as nasty in 1820 as it is in 2020. Even the “novel” use of filibusters is anything but. All these parts of the current system that we don’t like are symptoms of a larger phenomenon: as government has grown, so have the laws that courts interpret, and their reach over ever more of our lives.

Senatorial brinksmanship is symptomatic of a larger problem that began long before Kavanaugh, Garland, Thomas, or even Bork: the courts’ self‐​corruption, aiding and abetting the expansion of federal power, then shifting that power away from the people’s legislative representatives and toward executive branch administrative agencies. And the Supreme Court is also called upon to decide, often by a one‐​vote margin, massive social controversies, ranging from abortion and affirmative action to gun rights and same‐​sex marriage. The judiciary affects public policy more than it ever did—and those decisions increasingly turn on the party of the president who nominated the judge or justice.

So as the courts play more of a role in the political process, of course the judicial nomination and confirmation processes are going to be more fraught with partisan considerations. This wasn’t as much of a problem when partisanship meant rewarding your cronies. But it’s a modern phenomenon for our parties to be both ideologically sorted and polarized, and thus for judges nominated by presidents from different parties to have markedly different constitutional visions.

Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, changing the size of the Court, setting new rules for the confirmation process, and more.

To find out more about the role politics has played in Supreme Court nominations from the early days of the Republic, how differing approaches to jurisprudence affect modern judicial battles, and learn what lessons we can draw from all that, as well as potential remedies, check out my new book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Supreme Disorder was amazingly released two weeks ago, which counts as perhaps the best timing in the history of publishing.

And while you’re waiting for your copy to arrive, watch Cato’s book forum and listen to my podcasts with Matt Lewis and David French/​Sarah Isgur, respectively, as well as other media and writings on my bio page.