Battle Expected over Supreme Court Nominee

As President Bush prepares to nominate a replacement for Supreme Court Justice Sandra Day O'Connor, observers are predicting a battle among various groups on the political spectrum. Conflicts have followed several previous Supreme Court appointments.

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MICHELE NORRIS, host:

Contentious Supreme Court nominations are nothing new. NPR's Ari Shapiro has a look back at some of the bitter judicial appointment fights of the past.

ARI SHAPIRO reporting:

The distance from nomination to confirmation can be a long one for a Supreme Court nominee. In 1795, President George Washington tried to appoint John Rutledge as chief justice. Federalists in the Senate opposed the nomination, Congress rejected Rutledge, and he attempted suicide. Suicide attempts notwithstanding, Supreme Court confirmation battles have only become more intense since then.

Professor MARK TUSHNET (Georgetown University): I think to start for the modern period is with the nomination fight over Abe Fortas in 1968.

SHAPIRO: Georgetown law Professor Mark Tushnet says when President Johnson nominated Abe Fortas to serve as chief justice, Senate Republicans were reluctant to confirm a known liberal civil rights advocate. But the debate in the Senate didn't focus on Fortas' ideology. Instead, Senate Republicans talked about the justice's close relationship with the president and allegations of conflicts of interest in his financial dealings. Tushnet says that's typical.

Prof. TUSHNET: The basic opposition is always disagreement with the ideological position of the nominee. But in some ways that doesn't play all that effectively with the public, and so opponents search for some other hook to hang their opposition on.

SHAPIRO: A year later it was the same scenario in reverse when President Nixon nominated Clement Haynsworth to the court. Haynsworth was too conservative for Senate Democrats. But the nominee's downfall was a financial arrangement that called his ethics into question. Haynsworth was followed by G. Harrold Carswell, deemed mediocre even by his supporters. But Carswell's eventual downfall came when he lied to the Senate Judiciary Committee about his role in keeping a local golf course all white. Ideology finally took a front seat nearly 20 years later when President Reagan nominated Judge Robert Bork to the Supreme Court in 1987. Over five long days of testimony, Bork defended his record on civil rights, privacy and sexual equality.

(Soundbite of 1987 hearing)

Judge ROBERT BORK: There is no ground in my record anywhere to suspect that I would not protect women as fully as men.

SHAPIRO: But liberal groups disagreed. They coordinated nationally to oppose the Bork nomination. Ralph Neas, now president of People for the American Way, led the opposition. He looks back on those hearings as a triumph of the American political process.

Mr. RALPH NEAS (President, People for the American Way): It was a seminar, really, for several weeks on constitutional law, the meaning of the Constitution and the history of the Constitution. It was perhaps, in my 32 years of working with Republican senators and working as an advocate before the Senate, probably the best moment ever in the United States Senate in terms of what was at stake and how it played out with the Democrats and Republicans.

SHAPIRO: Jay Sekulow of the conservative American Center for Law and Justice remembers it differently.

Mr. JAY SEKULOW (American Center for Law and Justice): It's a watershed moment 'cause it was the most personal of attacks, and it wasn't on the man's integrity and it was not on his conduct in his personal life. It was on judicial philosophy, and he was disqualified because of that philosophy.

SHAPIRO: Bork's eventual defeat coined a new verb in the American political lexicon: `to Bork,' meaning to disqualify a nominee for his or her ideology. Sekulow, who will be prominent in any fight over a new judicial nominee, says conservatives learned a lesson from that experience.

Mr. SEKULOW: That was a time when the right was not mobilized at all, and that gave groups like People for the American Way and Alliance for Justice free rein. That will never happen again.

SHAPIRO: And, indeed, conservative groups mobilized behind Clarence Thomas in 1991. Thomas was confirmed as an associate justice to the Supreme Court by the narrowest margin in Supreme Court history. Law Professor Anita Hill had accused him of sexual harassment. Thomas said of his confirmation battle, `No horror in my life has been so debilitating.'

(Soundbite of 1991 hearing)

Justice CLARENCE THOMAS: Enough is enough. I'm not going to allow myself to be further humiliated in order to be confirmed.

SHAPIRO: Liberal activists were splintered over the Thomas nomination because civil rights groups couldn't agree on whether Thomas, who's African-American, should be confirmed.

Sandra Day O'Connor had the first televised Supreme Court confirmation hearing in US history. The hearing for her nominated replacement will be the first in the Internet age. That makes it easier than ever for the public to dig up unpleasant details from a nominee's past, which means the Bush administration may want to make one addition to its list of qualifications for a Supreme Court nominee: a thick skin. Ari Shapiro, NPR News, Washington.

NORRIS: You can read about many of those battles over Supreme Court nominees at our Web site, npr.org.

ROBERT SIEGEL (Co-host): You're listening to ALL THINGS CONSIDERED from NPR News.

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