The way Supreme Court confirmations should be
By Michael M. Bates (09/13/05)
It was 1962 and everything wasn’t magical in Camelot.
John F. Kennedy had presided over the failed Cuban Bay of Pigs invasion a year earlier. Deciding the new American leader was a weakling, the Soviets boldly built the Berlin Wall. The President was hastily increasing the number of U.S. troops in someplace called Vietnam. At home, he received harsh criticism for not taking decisive action on civil rights, something he’d promised to do.
Despite all this, President Kennedy remained popular with much of the electorate. This was at a time when there was still a modicum of civility in the political world. Bipartisanship was more than a hypocritical talking point.
It was also a time when members of the Senate provided little advice and quick consent of the President’s nominee to the Supreme Court.
Mr. Kennedy formally sent his nomination of Byron White to the Senate on April 4. The confirmation hearing was held April 11th.
Compare that to now. President Bush nominated John Roberts almost two months ago and hearings just began this week.
Back then, so much time wasn’t necessary to review the candidate’s background. Unlike today, everything the nominee said, wrote or did since kindergarten wasn’t exhaustively examined.
Dennis Hutchinson’s "The Man Who Once Was Whizzer White: A Portrait of Justice Bryon R. White" describes Mr. White’s confirmation hearing.
The Senate Judiciary Committee spent an hour and a half listening to testimony and asking questions. Most of the session consisted of bar associations urging confirmation.
According to the Washington Post: "White, a reticent man, sat quietly, doodling on a pad and smoking cigarettes as Senators and lawyers praised his ability."
Newsman David Brinkley always insisted that Mr. White’s own comments lasted exactly eleven minutes. I have read elsewhere that the nominee was asked eight questions, so perhaps that explains why he talked so long.
One question that came up is yet being asked: Does or should the Supreme Court, through its decisions, legislate?
Mr. White’s response was succinct. Under the Constitution legislative power is vested in the Congress. Changing laws was the business of Congress.
The committee went into executive session. Five minutes later came the announcement that White’s nomination had been unanimously approved.
The full Senate took up the nomination the same day. The rules were suspended and Byron White was confirmed by voice vote.
Later that day a Washington journalist asked Mr. White what he thought the Supreme Court’s constitutional role was. "To decide cases" was the answer.
That didn’t sound like something a judge would say. With good reason. Byron White, whose nomination whizzed through the Senate in a few hours with no expressed opposition, had never been a judge.
Now hearings for Supreme Court nominees drag on for days. Almost every aspect of the candidate’s life is probed.
Eighteen years ago today, hearings on President Reagan’s nomination of Robert Bork to the Supreme Court began. Even Mr. Bork’s choice of video rentals was examined during his ordeal.
Hearings weren’t widely televised in 1962. Now they are. So Senators of both parties use the opportunity to blather on and try to look smart.
They speak of the need for judges, especially Supreme Court judges, to use "fairness" or "compassion" or some other concept not mentioned in the Constitution as the basis for their decisions.
On Monday, one of the Senators advised John Roberts that, "The American people deserve a government as good as they are, with a heart as big as theirs. We are all Americans and all Americans should have the opportunity to earn a fair share of the bounty and blessings that America has."
The big heart clause of the Constitution must be hidden in there with that right to privacy certain Senators obsess on. For some of them the hearings are a game of gotcha. They ask the same basic question with slight variations over and over in hopes the nominee will blurt out something injudicious.
The Senate shouldn’t act, as it did in 1962, as a submissive rubber stamp for a President’s judicial nominees. But are we better served by today’s long, drawn-out process? I doubt it.
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