Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court

by Mollie Hemingway

  The elevation of Justice William Rehnquist to chief justice after Warren Burger’s retirement in 1986 was unusually controversial for its time. With his record as the most conservative member of the Court, Rehnquist became the target of more than 150 liberal interest groups, who placed damaging stories with friendly media outlets. They accused him of having harassed and intimidated black and Latino voters in the 1960s and unearthed a racially restrictive covenant on property he owned (of which he was unaware and which was probably unenforceable). While the effort to defeat him failed, it was a rough road to confirmation, and the thirty-three Senate votes against him were the most cast against a chief justice up to that time.

  Antonin Scalia, on the other hand, was easily confirmed to fill Rehnquist’s seat as an associate justice even though he was one of the fathers of the conservative legal movement. His hearing, in which he joked with senators while smoking a pipe, was easier in part because he would be the first Italian American on the Court and in part because of disgust with the brutality of Rehnquist’s confirmation.45 And perhaps the Democrats were simply exhausted after that battle.46

  The Senate had begun taking its constitutional role of “advice and consent” in the appointment of justices much more seriously during Nixon’s presidency. Three of Eisenhower’s five nominees—Warren, Brennan, and Whittaker—were confirmed by voice vote. Voting for the record by name became a matter of course only under Nixon. This growing self-assertion by the Senate, along with the Court’s ever-bolder activism, which raised the political stakes of each appointment, made the confirmation process increasingly contentious. Americans learned just how contentious it could be when Justice Lewis Powell retired in 1987.

  On July 1, President Reagan nominated Judge Robert Bork of the U.S. Court of Appeals for the D.C. Circuit to replace Powell. The disastrous confirmation battle that followed would galvanize a generation of conservative lawyers and jurists, who viewed the scurrilous attacks on Bork, one of the greatest legal minds of his generation, as unconscionable.

  Within an hour of the announcement, Senator Edward M. Kennedy, attempting to strangle the nomination in its cradle, took to the floor of the Senate and delivered a shockingly vicious speech:

  Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy. America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be. The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.47

  The accusations were completely unfair. Bork had never suggested that he opposed the teaching of evolution. The evocation of “rogue police” breaking down doors in midnight raids was a reference to Bork’s criticism of the judge-created “exclusionary rule,” which forbids the presentation at trial of evidence that was obtained improperly. In general, Senator Kennedy confused Bork’s legal arguments with policy positions and then further mischaracterized the outcomes of the cases at issue. Supporting the right of Nazis to march in public, as the Supreme Court did in National Socialist Party of America v. Village of Skokie, does not suggest support for Nazi beliefs.48 It does, however, indicate support for free speech and the right to assemble.

  Kennedy’s speech was a pivot from evaluating a nominee’s qualifications to judging his politics. Liberal activists approved, and they noticed that it worked. As the legal correspondent Jeffrey Toobin observed, “It was crude and exaggerated, but it galvanized the opposition as nothing else, and no one else, could.”49

  Four hundred special interest groups, an unprecedented number, weighed in on Bork’s nomination, three hundred of them in opposition. A few groups had campaigned for or against Supreme Court nominations intermittently prior to that, but Bork’s hearing was the first time that sophisticated marketing techniques were deployed against a Supreme Court nomination. Arguments were tailored to specific audiences for radio ads and newspaper op-eds.

  People for the American Way ran a national television ad, likely the first of its kind, featuring the actor Gregory Peck, whose association in the popular imagination with the fictional lawyer Atticus Finch made him a symbol of integrity. Peck asserted that Bork had “defended poll taxes and literacy tests, which kept many Americans from voting. He opposed the civil rights law that ended ‘Whites Only’ signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks freedom of speech does not apply to literature and art and music.” Ending on an ominous note, Peck reminded viewers that “if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”50

  Bork’s Senate testimony dragged on for five days, and the published record stretched to 6,511 pages. The hearings lasted twelve days and included testimony from twenty special interest groups. Reagan made more than thirty public statements on Bork’s behalf, and the White House launched a public relations offensive, but it was too little and too late.51 “We thought it was going to be a coast job, to tell you the truth—that it was going to be easy,” recalled Reagan’s communications director, Tom Griscom. “[We had] never seen somebody run the type of effort they ran [against Bork], and we let it get away from us.”52

  Yet the Reagan team ought not to have been surprised after the warm-up campaign against Rehnquist a few years earlier, when Senator Kennedy had even given his “Robert Bork’s America” speech a dry run:

  Imagine what America would be like if Mr. Rehnquist had been the Chief Justice and his cramped and narrow view of the Constitution had prevailed in the critical years since World War II. The schools of America would still be segregated. Millions of citizens would be denied the right to vote under scandalous malapportionment laws. Women would be condemned to second class status as second class Americans. Courthouses would be closed to individual challenges against police brutality and executive abuse—closed even to the press. Government would embrace religion, and the walls of separation between church and state would be in ruins. State and local majorities would tell us what we can read, how to lead our private lives, whether to bear children, how to bring them up, what kind of people we may become.53

  Despite Democrats’ efforts, Rehnquist was elevated to chief justice, and held the position for nineteen years. None of Kennedy’s apocalyptic predictions came true.

  The intellectual leader of the opposition to Bork was Professor Laurence Tribe of Harvard Law School, a prominent proponent of judicial activism whose book God Save This Honorable Court influenced many Democrats on the Judiciary Committee and was the “primer used by Judge Bork’s opponents to defeat his nomination.”54 Tribe urged senators to break with tradition: a qualified candidate should be rejected if he would change the ideological balance of the court, which conveniently leaned left. Senators should not shrink from evaluating the social, political, and legal views of the nominee. For two hundred years, the judicial ideal had been political impartiality, but Tribe wanted senators to think of judges as political forces. And he was right. Time after time, a liberal Supreme Court majority has shown itself to be the nuclear bomb of political warfare.

  The offensive against Bork’s nomination was so devastating that it spawned a new word. To “bork” means “t
o attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification,” according to the Merriam-Webster dictionary.55

  As the confirmation process degenerated into farce, Bork faced pressure to withdraw. His support from Attorney General Edwin Meese and others at the Department of Justice was strong, but in the wake of Iran-Contra and other scandals, Reagan had replaced his conservative circle of White House advisers with moderates who were far less enthusiastic about continuing the politically costly battle. Vice President George Bush’s office had encouraged Bork to withdraw as well. His confirmation by the Democrat-controlled Senate seemed impossible.

  Bork understood that his nomination was doomed, but he would force the Senate to hold a vote and urged the country not to permit this travesty to be repeated. Using political campaign tactics against a Supreme Court nomination was “not simply disturbing,” he said, but “dangerous,” for it would “erode public confidence in the impartiality of courts.” No good judge, moreover, could effectively respond to such a campaign since his judicial responsibilities were “flatly incompatible” with doing so.56 Bork’s nomination was defeated by a vote of forty-two to fifty-eight.

  After a second unsuccessful nomination—Judge Douglas Ginsburg was forced to withdraw after reports of past marijuana use—the president nominated Judge Anthony Kennedy of the Ninth Circuit. Conservatives had argued that nominating a moderate would reward the mob that had taken down Bork. “Even worse, it would be a powerful and haunting statement of acknowledgement that the President’s agenda is no longer salable to the American people,” warned Gary Bauer, a domestic policy adviser.57

  Memoranda prepared at the time show that conservatives in the Reagan administration knew Kennedy might be a disappointment.58 But others in the administration were more optimistic, including Attorney General Meese. He had worked with Kennedy in California on projects for then-Governor Reagan, who had recommended that President Nixon appoint Kennedy to the federal bench. Meese described Kennedy’s Ninth Circuit record as “unblemished” and praised his early recognition of the overreach of the Supreme Court’s Commerce Clause decisions, decades before those became a national issue in the 2012 Obamacare challenge. Reagan was asked if the nomination of Kennedy meant that he had caved in to liberals. “When the day comes that I cave in to the liberals, I will be long gone from here,” he replied.59

  Liberals in the media were of two minds. Linda Greenhouse, the Supreme Court reporter of the New York Times, observed that Laurence Tribe was a witness in support of Kennedy at his confirmation hearings, where he praised his willingness to recognize rights not spelled out in the Constitution and his rejection of originalism.60 Nonetheless, Greenhouse later described Kennedy’s first full term on the Court as “The Year the Court Turned to the Right.”61

  When Justice William Brennan retired in 1990, President George H. W. Bush got his first chance to move the Court to the right. His chief of staff, John Sununu, pushed for David Souter, whom he had appointed to the Supreme Court of New Hampshire when he was governor and whose appointment to a federal appeals court he had secured earlier in Bush’s presidency. Souter had been introduced to Sununu by Warren Rudman, a liberal Republican senator from New Hampshire, who later bragged about surreptitiously getting the liberal on the Supreme Court.62 Sununu touted Souter’s light judicial record as a benefit, since he would have to win confirmation from a Democratic Senate. Only one person in the Justice Department, George Smith, even tried to vet Souter. While it was difficult to say much given the short paper trail, he was not encouraged.

  When Souter was nominated, Sununu personally assured suspicious conservatives that he would be a “home run for conservatives” on the Court.63 But by the time the hearings opened, it was apparent that Souter’s nomination was a horrible mistake. His effusive praise for Brennan and the Warren Court alarmed conservatives. He quickly became one of the Court’s most reliably liberal votes. Many conservatives regard the appointment of this unknown jurist with no paper trail as Bush’s most consequential blunder.

  The retirement of Justice Thurgood Marshall the following year gave Bush an opportunity to make amends for that mistake, and he tacked decisively to the right with the nomination of Judge Clarence Thomas of the D.C. Circuit. Leftist groups pounced immediately. The National Organization for Women held a press conference in New York, where the feminist activist Florynce Kennedy, joined by Patricia Ireland and Gloria Steinem, threatened, “We’re going to bork him. We’re going to kill him politically.” She added, graciously, “This little creep, where did he come from?”64

  This was just days after his nomination and months before Thomas’s former colleague Anita Hill accused him, without evidence, of sexual harassment. Her allegation turned his confirmation into a horrific ordeal, but Thomas was ultimately confirmed by a vote of fifty-two to forty-eight, the last time a justice was confirmed by a Senate controlled by the opposing party.65

  The Reagan-Bush years taught judicial conservatives several lessons. First and foremost was the importance of controlling the Senate. Republican control was why Rehnquist won and Bork lost. Second, inadequate vetting can have disastrous results. While Kennedy’s record gave White House lawyers enough information to know what to expect from him—and they chose him anyway—the records of O’Connor and Souter did not have enough information to warrant a nomination. O’Connor simply hadn’t ruled on the types of cases she would deal with at the federal level. Souter, likewise, had been nominated after only two months on the federal bench. Finally, the Thomas battle taught them that scurrilous allegations could arise at the last minute if all other efforts to derail a nomination failed.

  The Supreme Court was a major issue before the 2000 election, with liberal pundits fearing what Bush would do if elected. “Wake up, America,” Helen Thomas urged in her November 4 column, headlined: “The Supremes: They’re What the Election Is All About.” She prophesied that if George W. Bush won, an “ultraconservative majority” would dominate the Court for years. “All I can say is ‘cry the beloved country’ if Bush-appointed conservatives prevail on the high bench.”66 The Democratic nominee, Al Gore, joined her doomsday chorus, warning that Bush had promised to move the Court “to the extreme right wing.”67

  Bush won, and in his two terms he appointed two justices, but Helen Thomas’s apocalyptic predictions proved inaccurate. John Roberts was first nominated to replace Sandra Day O’Connor, but when William Rehnquist died, Roberts was re-nominated for the chief justice’s seat. He was billed as a strong conservative, and his confirmation was relatively easy. But conservatives would later lament his lack of courage on the bench. His two opinions upholding the Affordable Care Act, also known as “Obamacare,” looked like desperate efforts to rewrite the law to avoid the political firestorm that overturning it might ignite.68 In the first constitutional challenge to Obamacare, which forced Americans to purchase health insurance or face a heavy penalty, he initially voted to overturn the law as outside Congress’s Commerce Clause authority. Worried that overturning a major piece of legislation would arouse public anger and that the insurance markets might be thrown into chaos, he voted to uphold the law by redefining the penalty as a tax.69 From a conservative perspective, the problem with Roberts was not that he was a liberal but that the prospect of intense controversy affected his rulings or caused him to avoid taking a strong stand, whether by voting not to hear cases on controversial issues or by going out of his way to decide them on extremely narrow grounds. For conservatives yearning for justices who would be strong under pressure, Roberts’s appointment became a cautionary tale.

  Bush then nominated his longtime friend and White House counsel Harriet Miers to replace O’Connor, but she immediately drew opposition from senators and others concerned about her lack of judicial experience. Grassroots conservatives also rebelled. Miers’s character and talent had won the confidence and loyalty of the president and the admiration of many in the legal comm
unity of Texas, where she had been one of the first women to reach the highest levels of private corporate practice. But her career, however impressive, afforded little evidence of the unshakeable commitment to a principled judicial philosophy that conservatives were demanding. She withdrew within a month, and Judge Samuel Alito of the Third Circuit was nominated instead, an appointment that conservatives regard as remarkably successful.

  Starting with President Eisenhower, Republicans had filled nineteen Supreme Court seats, compared with eight for Democrats. Yet the reign of liberal activism on the Supreme Court had encountered few challenges.

  Scalia’s death was a crushing blow to GOP voters and the conservative legal movement, frustrated by decades of blown opportunities to secure control of the Court. And it came just as Republicans were seeking to coalesce around a presidential candidate who could beat Hillary Clinton, already the front-runner in the race.

  While the stunned Don McGahn sat at a Maryland gas station trying to figure out the Trump campaign’s response to Scalia’s death, people associated with the influential Federalist Society immediately began to strategize. On law school campuses, the group of conservatives and libertarians is known for hosting debates, which are also a major feature of their national conferences. Leading lights from across the political spectrum have debated, for example, whether district courts have the authority to enter nationwide injunctions, whether the Constitution presumes a moral and religious people, whether the government’s collection of phone records violates the Fourth Amendment, and whether courts are too deferential to legislatures.