A History Of Supreme Court Confirmation Hearings

The U.S. Senate didn't begin holding confirmation hearings for Supreme Court nominees until 1916. Legal historian Scot Powe tells NPR's Guy Raz about what triggered the first hearing: Woodrow Wilson's controversial nomination of Louis Brandeis. Powe traces the history of such hearings.

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GUY RAZ, host:

Al Franken has gone to great lengths lately to be unfunny, but thankfully, Minnesota's other senator, Amy Klobuchar, hasn't. In a few minutes, we'll hear from the woman dubbed the funniest U.S. senator. Amy Klobuchar is also on the Judiciary Committee with Al Franken.

First though, a little historical perspective. If some senators decide to turn up the heat this week, Judge Sotomayor might wish she'd been nominated before 1916. That was the year of the first confirmation hearing for a Supreme Court justice. Until that point, the Senate simply voted yay or nay.

Then in 1916, President Woodrow Wilson picked his aide Louis Brandeis for a spot on the court.

Lucas Powe, a professor of law and government at the University of Texas, explains what happened next.

Professor LUCAS POWE (Law and Government, University of Texas; Author, "The Supreme Court and the American Elite, 1789-2008"): Brandeis was a spectacularly controversial nomination. First, he was the first Jew ever to be nominated for the court, and there was blatant anti-Semitism there.

Second, he'd been a very successful lawyer. And after he got really rich, he became what seems to be the first public-interest lawyer in American history, and he started to take on corporations that formerly he would have been taking money from as their advocate, and thus he made a lot of enemies. And former President Taft, Harvard President Lowell, former Attorney General Wickersham, former Secretary of State Elihu Root and several former presidents of the American Bar Association all opposed his nomination.

RAZ: So it was so controversial, they essentially had to have hearings.

Prof. POWE: Yes, they had to have hearings. And it was four months from President Wilson's nomination until the final vote on Brandeis which was, for that era, an incredible amount of time.

RAZ: And so, I mean, what happens, or did Lewis Brandeis sort of had to show up every day and testify at the hearings?

Prof. POWE: No, Brandeis did not attend his hearings at all. There were people supporting him and obviously people opposing him.

RAZ: So when did nominees actually start appearing at their own confirmation hearings?

Prof. POWE: The first nominee to do so was Felix Frankfurter in 1939. And Frankfurter, like Brandeis, was Jewish; and Frankfurter, like Brandeis, was a controversial appointment, especially for his defense of Sacco and Vanzetti during the '20s.

RAZ: The anarchists.

Prof. POWE: Yes. And thus, the Senate wanted hearings and Frankfurter attended but took the not surprising position that his public record spoke for itself, and he wasn't going to add a whit to it.

RAZ: So essentially, he just came out there and said that?

Prof. POWE: Yeah.

RAZ: I mean, he said nothing else?

Prof. POWE: That's right. He said it would be inappropriate for him to add or subtract from his lengthy public record.

RAZ: They didn't ask him any questions?

Prof. POWE: They couldn't get any answers.

RAZ: And that was it? And what was the reaction by the members of the Judiciary Committee?

Prof. POWE: They confirmed him.

RAZ: So, at what point did you actually have this process where the nominee would come and sit down and really start to answer the questions?

Prof. POWE: I think the turning point was Potter Stewart's nomination in 1959. By that time, southern Democrats were fully hostile to the Supreme Court because of its desegregation decisions, and conservative Republicans were worried about the Supreme Court over national security issues, and Stewart got a fair grilling. But like other nominees, he didn't provide them any answers.

RAZ: When you say he didn't provide them any answers, he answered their questions, but they weren't particularly substantive?

Prof. POWE: That's right. He wouldn't give them the information they were looking for.

RAZ: Professor Powe, nowadays it seems, you know, if you make it to the confirmation stage, you're pretty much in. Of course, there was one notable exception in the last 30 years, and that was Judge Bork. Can we really learn anything about these nominees during this process?

Prof. POWE: I don't think that we do. We certainly learn that they are willing to obfuscate, because now we seem to give points to the nominee for the ability to avoid answering the questions being asked.

Take Justice Scalia. When he was questioned by the senators, one senator asked him: Do you consider Marbury versus Madison settled law? And of course, it's been settled law since it came down in 1803, and Justice Scalia refused to answer on the grounds that the question might come before him as a justice.

(Soundbite of laughter)

A little later, both Justice Souter and Justice Ginsburg were asked whether the Korean War was a war, and both of them declined to answer.

RAZ: Professor Powe, will you be watching the Sotomayor hearings?

Prof. POWE: If it's a 106 in Austin, I certainly will.

(Soundbite of laughter)

RAZ: Lucas Powe is a professor of law and government at the University of Texas in Austin. His latest book is called "The Supreme Court and the American Elite, 1789-2008."

Professor Powe, thanks for helping us out.

Prof. POWE: Thank you very much.

(Soundbite of music)

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