“An amateur with a pocket calculator,” the majority writes, can calculate that “there is little chance of randomly selecting four consecutive all-white juries.” Statistics can be very revealing—and also terribly misleading in the hands of “an amateur with a pocket calculator.” The majority’s simplistic analysis treats the prospective jurors who were peremptorily challenged as if they had no relevant characteristics other than race, as if they were in effect black and white marbles in a jar from which the lawyers drew. In reality, however, these individuals had many other characteristics, and without taking those variables into account, it is simply not possible to determine whether the prosecutions’ strikes were based on race or something else.
The dangers in the majority’s approach can be easily illustrated. Suppose we asked our “amateur with a pocket calculator” whether the American people take right- or left-handedness into account in choosing their presidents. Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. Our “amateur with a calculator” would conclude that “there is little chance of randomly selecting” left-handers in five out of six presidential elections. But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?
Judge Dolores K. Sloviter, the author of the majority opinion, dryly replied to Alito, “The dissent has overlooked the obvious fact that there is no provision in the Constitution that protects persons from discrimination based on whether they are right-handed or left-handed. To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants.”
The facts that Alito overlooks are, of course, facts that his fellow right-wing ideologues also can’t see from the mysterious planet—even farther away than Davos, Switzerland—they inhabit. During the Roberts and Alito hearings, it was almost amusing to hear the nominees ritually denounce discredited Supreme Court decisions, such as Plessy v. Ferguson (1896), which refused a Creole named Homer Plessy the right to sit where he wanted on a train, and established the separate-but-equal doctrine; and Korematsu v. United States, which countenanced the internment of Americans of Japanese descent during the Second World War. Is there any reason to think that, had he been on the Court when these cases came before it, Alito or Roberts would have opposed the majority? Roberts was much given to affirming his fealty to “the rule of the law.” He said, “Somebody asked me … ‘Are you going to be on the side of the little guy?’ And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution.” The cases that are the glory of Supreme Court history are the cases where the little guy won; the cases that are its shame are those where he lost. The Constitution doesn’t say who should win. Nine people do.
3
Another memorable passage in the David Souter confirmation hearings occurred while he was being questioned by the Democratic senator from Ohio, Howard Metzenbaum. Metzenbaum asked Souter, as fifteen years later Feinstein asked Roberts, to give a personal rather than a legal response to a question about a controversial issue—abortion, in this case. Metzenbaum described in gruesome detail cases of illegal abortion from the pre-Roe era, and then said, “My real question to you isn’t how you will rule on Roe v. Wade … but what does a woman face, when she has an unwanted pregnancy, a pregnancy that may be the result of rape or incest or failed contraceptives or ignorance of basic health information? And I would just like to get your own view and your own thoughts of that woman’s position under these circumstances.”
Souter paused before replying. Then he said, “Senator, your question comes as a surprise to me. I wasn’t expecting that kind of question, and you have made me think of something that I have not thought about for twenty-four years.” Souter went on to tell a story from his days at Harvard Law School. He had an appointment as a resident proctor (a student adviser) in a Harvard College freshman dormitory, and one day a student came to him for counsel. “He was in pretty rough emotional shape,” Souter recalled,
and we shut the door and sat down, and he told me that his girlfriend was pregnant and he said, “She’s about to try to have a self-abortion and she doesn’t know how to do it.” He said, “She’s afraid to tell her parents what has happened and she’s afraid to go to the health services,” and he said, “Will you talk to her?” and I did.… I will not try to say what I told her. But I spent two hours in a small dormitory bedroom that afternoon, in that room because that was the most private place we could get … listening to her and trying to counsel her to approach her problem in a way different from what she was doing, and your question has brought that back to me, and I think the only thing I can add to that is I know what you were trying to tell me, because I remember that afternoon.
As Souter spoke—gravely and slowly (but not too slowly), with his strong New England accent (he said “lore” for “law” and “sore” for “saw” and “floor” for “flaw”)—one had the feeling of lights dimming on a set. One of the characters would soon get up to draw the curtains and turn on a lamp. This was not the only time in the Souter hearing that one felt as if one were seeing a well-wrought play rather than witnessing a piece of left-to-chance reality. In his opening statement, Souter told the senators that he was looking forward to “our dialogue,” and dialogue did indeed take place—often very gripping dialogue. As Alito had unnerved, you could almost say unmanned, his questioners, so Souter gave his interlocutors to know that this was a play in which all the roles had good lines. If Souter—a slight man (his thinness had a mildly ascetic cast) of enormous, subtle intelligence and a moving absence of self-regard—was the star turn, he permitted the supporting cast of senators to perform no less brilliantly. Watching tapes of the Souter hearings makes one feel how things have deteriorated.
But not so fast. When the stately Shavian drama of the questioning of Souter ended, a new and entirely different drama began. The furies arrived. Molly Yard, the president of NOW; Fay Wattleton, of Planned Parenthood; Eleanor Smeal, of the Fund for the Feminist Majority; Kate Michelman, the executive director of NARAL; and Elizabeth Holtzman, the New York City comptroller, testified against Souter with fierce disdain. They assumed (as Michelman assumed about Alito when she testified against his confirmation in January) that Souter would cast a decisive vote to overturn Roe v. Wade. “I tremble for this country if you confirm David Souter,” said Molly Yard. “Women’s lives are literally on the line.” She sneered at Souter’s account of the scene in the freshman dorm: “This shows empathy? How do we know but what he may have cold-bloodedly told her she would be a murderer if she ended her pregnancy?”
Souter’s record on civil rights, voting rights, gay rights, and victim rights and his bias toward law enforcement was similarly mocked and denounced by the feminists. Had these angry witnesses been able to see into the future, would they have testified as they did? Of course not. And had I not known how things turned out with Souter, would I have watched the tape of his confirmation hearing with the same charmed delight? Of course not. We read what we can into reality’s impassive face. Alan Simpson, a prescient pro-choice Republican senator from Wyoming, said to Michelman and Wattleton, “I really believe you are making a big mistake on this one.… These things are going to come up again. There are going to be other Supreme Court choices when you are really going to need to be in the trenches. This is not one of those cases.” He went on to say that Souter was “bright, intelligent, studious, caring, chivalrous, patient, probative, civilized, and a great listener and if that ain’t enough for you, I think you are making a real mistake.” “I think we have a difference of opinion,” Wattleton said. After the furies left, a little parade of law-enforcement officials went by who said that when Souter wa
s attorney general of New Hampshire he had shown the police unfailing courtesy and kindness.
Then came another twist of the plot. Howard Phillips, the chairman of an organization called the Conservative Caucus, took the stand and compared Souter to Adolf Eichmann. After Souter performed his aria of the freshman dorm, Metzenbaum had said that’s nice, it shows “you have empathy for the problem.” But was there any reason to think that Souter could empathize with both sides of the abortion debate? His record showed strong anti-abortion leanings. Was there anything he could show on the “other” side? To which Souter replied that he was a trustee of a hospital in Concord where abortions were performed. Now Phillips accused Souter of being “an accomplice” to “the shedding of innocent blood.” “I would say that there is a fundamental distinction between the position of the groups such as NOW and NARAL and Planned Parenthood and so forth which urge a ‘no’ vote on Judge Souter,” Phillips said. “Their position is that they are not absolutely certain that Judge Souter is going to be with them to their satisfaction. I, on the other hand, am absolutely certain on the basis of the record that Justice Souter does have a permissive view toward abortion.” (Phillips went on to say that he was “troubled by his answers to other questions,” above all by “one he gave to Senator Thurmond at the very beginning of the hearings, when he said that the power of the law comes from the people. I don’t believe that. I believe it comes from God.”)
* * *
After the debacle of the Alito hearing, Joseph Biden said that confirmation hearings should be abolished. (During the Roberts hearing, he had already remarked, “These hearings have become sort of a Kabuki dance” and “I am moving to the view that I’m not sure these hearings are the proper way to determine how to vote for a judge.”) Biden is not the first to make such a proposal. In 1988, in response to the noisy Bork hearings, a Twentieth Century Fund Task Force on Judicial Selection recommended that the confirmation process be restored to a quieter former mode, whereby the nominee was judged solely on his written record and on the testimony of legal experts. These recommendations were ignored, as we know. As John Anthony Maltese points out, they were posited on the dubious idea of
a golden age when Supreme Court nominees were not required to testify, when the factious whims of public opinion were ignored by senators, when the legal qualifications of nominees were considered without the taint of political motivation, and when senators deliberated behind closed doors rather than posturing in the glare of television lights. The problem is that the apolitical nature of that golden age is largely fictitious.
Maltese’s book is devoted to the political fights by which Supreme Court nominations are by their very nature dogged. Another book could be written about Supreme Court nominations since television lights first glared at them, in 1981, when Sandra Day O’Connor appeared before the Judiciary Committee. The televised hearings have not been uniformly edifying—the Alito hearing may be the least instructive of the lot—but each has its atmosphere and, so to speak, plot. The hearing for the nomination of Ruth Bader Ginsburg had the atmosphere of a garden party held to fete a beloved aunt about to embark on a wonderful journey. Ted Kennedy, who usually sits at confirmation hearings looking as if he had a toothache, was charming and funny. The Republicans were polite and deferential. During the recent hearings, the Republicans repeatedly boasted of their gracious acceptance of Ginsburg in contrast to the Democrats’ sulky resistance to Roberts and Alito. Lindsey Graham was particularly mordant in his description of Ginsburg as an A.C.L.U. Commie whom, nevertheless, the Republicans manfully swallowed because Clinton had won the election. So why don’t the Democrats manfully swallow Bush’s appointees? Why are they being such poor sports? “Elections matter,” Graham said. As the Democrats might have retorted—but didn’t think or know to do until Senate debate on Alito was under way—Ginsburg had not been thrust on the Republicans the way Roberts and Alito had been thrust on the Democrats. She had been preapproved by Orrin Hatch. Hatch recalls the circumstances in his book Square Peg: Confessions of a Citizen Senator. He writes that when Byron White resigned from the Court, Bill Clinton called him to ask how his secretary of the interior, Bruce Babbitt, would go over as a nominee. Hatch, then chairman of the Judiciary Committee, told Clinton that Babbitt was too liberal and would be hard to confirm, and gave him two names as alternatives: Ginsburg and Stephen Breyer. (In a footnote, Hatch writes that Ginsburg’s record as a federal appeals court judge was “very similar to that of another subsequent Supreme Court Justice, Antonin Scalia.”)
The Thomas hearings, in contrast, with their incredible final act, had a dark character—though it wasn’t until Jane Mayer and Jill Abramson published their tour de force of reporting, Strange Justice: The Selling of Clarence Thomas, that we understood just how dark. Thomas’s “high-tech lynching” speech, in which he denied Anita Hill’s accusations with moving vehemence, was one of the great performances of its time. But Mayer and Abramson’s research—their interviews with confidants of Hill’s who corroborated her account and with schoolmates of Thomas’s who recalled his crude sexual humor and regular attendance at pornographic movies—makes it all but impossible to believe that the zealot who sits in Thurgood Marshall’s place on the high court didn’t say those crassly dirty things to Anita Hill. Even more disturbing is the book’s account of how the far right, the lesson of Bork fresh in its memory, stopped at nothing to get this nominee on the Court.
Since Bork, nominees have played their cards close to their chests. Bork could conceivably have saved his nomination by not constantly showing his losing hand, but more likely the combination of powerful organized opposition on the left and the Democratic majority in the Senate was always enough to defeat it. By the time of Thomas, the right had mobilized, and has never again failed a stricken nominee. The so-I-lied convention, established by Thomas (who told the senators that he believed in a constitutional right to privacy and when safely on the Court said that, well, actually, he didn’t), along with the mantra of “If I talk about recent Supreme Court cases, the sky will fall,” has been firmly in place since the Thomas hearings. Biden’s misgivings about the hearings are justified: when they are over we know no more about the nominee’s judicial philosophy than we did before they started. But they yield another kind of knowledge: a portrait of the nominee emerges from them that may be as telling as any articulation of his judicial philosophy. When Alan Simpson asked David Souter whether he would be able to remove his personal feelings from his judgments, Souter said, “We always ask, we constantly ask ourselves, Senator, whether we can do that. We have no guarantee of success, but we know that the best chance of success comes from being conscious of the fact that we will be tempted to do otherwise.” Neither Alito nor Roberts showed himself capable of such fineness of mind. In the light of Souter’s testimony before the Judiciary Committee, his opinions on the high court should not have been surprising. And, in the light of theirs, Roberts’s and Alito’s probably will not be, either.
Biden also left out what may be the most compelling reason of all for the continued life of confirmation hearings: the intimate glimpse they give us of eighteen of our legislators. Which ones we love and which ones we hate is determined by our partisanship, of course. But as we watch them playing their big-league game we may sometimes forget to root, and just sit transfixed by their remarkable athleticism.
The New Yorker, 2006
SPECIAL NEEDS
The nine-part docuseries Sarah Palin’s Alaska, shown late last year on the cable channel TLC, has the atmosphere of a cold war propaganda film. It shows the Palin family during the summer of 2010, making happy trips to one pristine Alaskan wilderness area after another—fishing, hunting, kayaking, dogsledding, rock climbing—and taking repeated little swipes at the left. During a visit with her dad to a store in Anchorage named Chimo Guns, where she is buying a rifle for a camping trip in bear country, Palin remarks:
Out and about in Alaska’s wilds it’s more common than not to see somebody
having some kind of weapon on their person, in fact it’s probably as commonplace as if you’re walking down in New York City and you see somebody with a BlackBerry on their hip.
New York, of course, is code for all the things that Palin-style populism is against. I don’t have to tell my fellow Commies what these things are.
Not long ago Paul Krugman neatly distinguished between our two political sides. One side, he wrote in the Times,
considers the modern welfare state—a private-enterprise economy, but one in which society’s winners are taxed to pay for a social safety net—morally superior to the capitalism red in tooth and claw we had before the New Deal. It’s only right, this side believes, for the affluent to help the less fortunate.
The other side
believes that people have a right to keep what they earn, and that taxing them to support others, no matter how needy, amounts to theft. That’s what lies behind the modern right’s fondness for violent rhetoric: many activists on the right really do see taxes and regulation as tyrannical impositions on their liberty.1
The Palins travel in small planes into the tooth-and-claw wilderness to enact their allegory of unspoiled capitalism. Palin, who is both narrator and star of the series, performs arduous and sometimes even dangerous feats of outdoorsmanship to demonstrate the conservative virtue of self-reliance. In the episode in which she struggles for a foothold on a vertiginously steep glacier at the foot of Mt. McKinley in eerily beautiful and vast Denali National Park, she knows that no government handout is going to help her. She isn’t even sure God will help her, though she cries out to Him and His Son, “Oh God. Help me, Lord!” and “I’m scared.… Holy Jeez!” She is tied by a rope to a guide above her and her husband below, but she can’t seem to make progress on the rock. The guide gives her instructions, but she can’t follow them. “I don’t know what I’m going to hold on to here.… What about my legs? Where do I put ’em?… This may flippin’ take me all day.”
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