History as a Guide to Alito's Nomination Hearings On the eve of confirmation hearings for Supreme Court nominee Samuel Alito, Nina Totenberg looks back at past hearings, including the recent hearings for Chief Justice John Roberts.
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History as a Guide to Alito's Nomination Hearings

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History as a Guide to Alito's Nomination Hearings

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History as a Guide to Alito's Nomination Hearings

History as a Guide to Alito's Nomination Hearings

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On the eve of confirmation hearings for Supreme Court nominee Samuel Alito, Nina Totenberg looks back at past hearings, including the recent hearings for Chief Justice John Roberts.

MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

Next week, the Senate Judiciary Committee opens hearings on the nomination of Judge Samuel Alito to the Supreme Court. If confirmed, the conservative Alito would replace the retiring Justice Sandra Day O'Connor, who's been a crucial swing vote on many key issues, and Alito likely would serve for decades. NPR legal affairs correspondent Nina Totenberg has this look at Supreme Court confirmations past and present.

NINA TOTENBERG reporting:

Supreme Court nominations have been controversial throughout our history. Indeed, roughly one in five nominees never made it through the process. Whether the subject was slavery, abortion, school prayer or the constitutionality of the minimum wage, the ultimate arbiter at some point has been the nation's highest court, and the Senate has not always been willing to go along with a president's choice.

And yet the practice of the Senate Judiciary Committee interrogating the nominee is relatively recent. The first time was in 1925 with nominee Harlan Fiske Stone. Over the next 30 years, only one other nominee, Felix Frankfurter in 1939, was asked to testify. The modern practice of nominees testifying routinely at confirmation hearings really began in 1955 in the aftermath of the court's Brown vs. the Board of Education school desegregation decision. TV and radio came even later, in 1981, with the nomination of Sandra Day O'Connor.

The conventional wisdom in Washington today is that the 1987 hearings on the nomination of Robert Bork broke the mold and established for the first time that nominees would have to answer questions about their judicial philosophy. Certainly it's true that before Bork hearings focused more on questions of ethics, qualifications and character, but Bork was hardly the first to have to answer questions about his judicial views. And many of the questions that have echoed throughout the hearings of the last half-century will once again be front and center at the Alito hearings, in part because of Judge Alito's 15-year conservative judicial record and in part because of the letter he wrote in 1985 when he applied for a high-ranking Justice Department job.

In that letter, Alito said that his conservative legal views were inspired by his strong disagreement with the more liberal views of the Warren court on subjects like legislative reapportionment, the principle of one man, one vote and the separation of church and state. And he said he was particularly proud of his contribution to the Reagan administration's legal efforts to reverse Roe vs. Wade, the Supreme Court's landmark abortion decision. Said Alito back then, `The Constitution does not protect a right to an abortion.'

Since his nomination this fall, Alito has suggested to senators that those are his personal views, not his legal views, a characterization that even Judiciary Committee Chairman Arlen Specter has not accepted. And Alito has told senators that he has a strong commitment to upholding Supreme Court precedents, including one man, one vote, even though he may not have agreed with them originally.

Much of this territory has been plowed before with other nominees. In 1986, for instance, when President Reagan nominated then-Associate Justice William Rehnquist to be chief justice, Senate Judiciary Committee members pressed the nominee over the views he had expressed in his years on the court. Did he, for example, accept that there's a constitutional right to privacy, a principle that even then had been accepted by the court for more than two decades and that's the underpinning to the right to abortion? Rehnquist indicated he did not.

(Soundbite of 1986 Senate Judiciary Committee confirmation hearing)

Justice WILLIAM REHNQUIST (US Supreme Court): I've had some difficulty with it. I've been somewhat at odds with some of the members of the court on it.

TOTENBERG: A year later, Robert Bork faced the committee with an extensive written record of articles and speeches that appeared to call for the reversal of huge chunks of established law. In five days of testimony, Bork said he did not believe there's a right of privacy guaranteed in the Constitution. He said the court had been wrong in 1963 to strike down a state law making it a crime for married couples to use contraceptives. He opposed the court's one man, one vote decision.

(Soundbite of 1987 Senate Judiciary Committee confirmation hearing)

Judge ROBERT BORK (Supreme Court Nominee): There is nothing in our constitutional history that suggests one man, one vote is the only proper way of apportioning.

TOTENBERG: He questioned the court's framework for requiring equal treatment of men and women, opposing, for example, the court's decision invalidating a state law that set the minimum drinking age for women at 18 and at 21 for men.

(Soundbite of 1987 Senate Judiciary Committee confirmation hearing)

Judge BORK: I thought, as a matter of fact, the differential drinking age probably is justified.

TOTENBERG: Former Reagan White House chief of staff Kenneth Duberstein says that Bork refused to take advice on his testimony, and that the nominee, in the end, defeated himself.

Mr. KENNETH DUBERSTEIN (Former Reagan Administration Chief of Staff): Bork was his own worst witness. Bork didn't want to have any part of any of the coaching, and I think you saw him bubble over with anger and dismissiveness that fulfilled the caricature that had already been painted of him.

TOTENBERG: Following Bork's defeat and the withdrawal of a second nominee, Judge Anthony Kennedy got the nod. And he, too, answered some, though certainly not all, questions. He said he disagreed with the Supreme Court's landmark Miranda decision requiring that suspects be advised of their rights.

(Soundbite of 1988 Senate Judiciary Committee confirmation hearing)

Judge ANTHONY KENNEDY (Supreme Court Nominee): It's not clear to me that it necessarily followed from the words of the Constitution.

TOTENBERG: But he went on to say that he did not think the decision should be reversed.

(Soundbite of 1988 Senate Judiciary Committee confirmation hearing)

Judge KENNEDY: That, of course, is the law, and I know of no strong argument for overruling the law that's now in place.

TOTENBERG: And, Kennedy said, he did believe in a constitutional right of privacy.

(Soundbite of 1988 Senate Judiciary Committee confirmation hearing)

Senator JOE BIDEN (Democrat, Delaware): And is there a marital right to privacy protected by the Constitution?

Judge KENNEDY: Yes.

TOTENBERG: Every nominee since has followed that lead, including the first President Bush's nominee, Clarence Thomas, who as a justice later rejected claims of a right to sexual privacy. The other Bush nominee, David Souter, dismayed pro-choice groups with his refusal to say what he thought of Roe vs. Wade, the court's abortion decision, but he did say he thought the death penalty is constitutional.

President Clinton's nomination of Judge Ruth Bader Ginsburg had the explicit blessing of ranking Republican Orrin Hatch, who prior to the nomination recommended her as a liberal moderate enough to win easy confirmation. Today, conservative Republicans point to the Ginsburg hearings as a model to be emulated. Former Attorney General Edwin Meese.

Mr. EDWIN MEESE (Former US Attorney General): You had Ruth Bader Ginsburg, probably farther to the left than any person who's been nominated by any Republican president to the other side of the spectrum, and yet that was very quiet. She refused to answer most every question that was asked, and she was confirmed by a vote of--I think it was 96-to-3.

TOTENBERG: Ginsburg, in her opening statement, did say it would be improper for her to give any hints about how she might rule in future cases. Notwithstanding that, though, she answered questions about her previous decisions and writings and ended up answering questions on some 30 different topics, including her view that the Constitution does include a right of privacy or, as she put it, `the right to determine to one's own life decisions.'

(Soundbite of 1993 Senate Judiciary Committee confirmation hearings)

Judge RUTH BADER GINSBURG (Supreme Court Nominee): The right to marry, the right to procreate or not, the right to raise one's children--the degree of justification that the state has to have to interfere with that is very considerable.

TOTENBERG: Although she sought to avoid committing herself on future cases, she answered questions about congressional power, abortion, affirmative action, gender discrimination, Indian treaties. She even answered questions about government funding of the arts. She would not, however, talk about her legal views on the death penalty.

(Soundbite of 1993 Senate Judiciary Committee confirmation hearing)

Judge GINSBURG: I have never expressed an opinion. I have never had a death penalty case. I have never written about it. I have never spoken about it in the classroom.

TOTENBERG: President Clinton's next nominee, Stephen Breyer, did answer questions about the death penalty.

(Soundbite of 1994 Senate Judiciary Committee confirmation hearing)

Judge STEPHEN BREYER (Supreme Court Nominee): In respect to the constitutionality of the death penalty, it seems to me that the Supreme Court has considered that matter for quite a long time in a large number of cases. At this point, it is settled.

TOTENBERG: Similarly, he said he viewed a woman's right to have an abortion as settled law, but he would not go further.

(Soundbite of 1994 Senate Judiciary Committee confirmation hearing)

Judge BREYER: That is the law. The questions that you're putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I don't think I should go into those for the reason that those are likely to be the subject of litigation in front of the court.

TOTENBERG: This fall, chief justice nominee John Roberts also faced questions about abortion. This time, there was great pressure not only from pro-choice advocates in the Senate, but from pro-life advocates, as well. Here, for example, is a Roberts exchange with Kansas Republican Sam Brownback, an outspoken abortion opponent.

(Soundbite of 2005 Senate Judiciary Committee confirmation hearing)

Senator SAM BROWNBACK (Republican, Kansas): If you're a person, you have rights. If you're a piece of property, you can be done with as your master chooses. Could you state your view as to whether the unborn child is a person or is a piece of property?

Judge JOHN ROBERTS (Supreme Court Nominee): Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.

TOTENBERG: Judiciary Committee Chairman Arlen Specter frequently observes that nominees answer as many questions as they have to to get confirmed. And on occasion, Specter has forced answers from reluctant nominees. In 1986, for instance, chief justice nominee Rehnquist at first refused to say whether he thought it was constitutional for Congress to strip the court of jurisdiction to rule on certain questions, to which Specter responded that, for him, the question was, quote, "bedrock."

(Soundbite of 1986 Senate Judiciary Committee confirmation hearing)

Senator ARLEN SPECTER (Republican, Pennsylvania): You have to decide, obviously, what you will respond to, and I have to decide for myself what that means to my vote in this committee and on the Senate floor.

TOTENBERG: Rehnquist soon came back with an answer.

(Soundbite of 1986 Senate Judiciary Committee confirmation hearing)

Justice REHNQUIST: I think that it would be very hard to uphold a law which carved out certain provisions of the Constitution, such as you're describing, the First Amendment.

Sen. SPECTER: I take it from your answer you think that the Congress would not have that authority.

Justice REHNQUIST: That's correct.

TOTENBERG: Specter, like other longtime observers of the process, knows that confirmation hearings have a life of their own with unexpected twists and turns. In 1991, eleventh-hour allegations that nominee Clarence Thomas had sexually harassed his onetime subordinate Anita Hill nearly doomed his nomination. His was perhaps the most dramatic case of a confirmation proceeding gone awry.

Robert Bork's hearings were more of a slow burn. Going into the hearings, the odds on defeating the nomination were slim to none. But as he tried to assure the committee that his academic writings did not represent his judicial views or how he would vote on the court, Bork found himself accused of a confirmation conversion. He said repeatedly that he was a strong believer in stare decisis, the legal doctrine of respecting precedent.

(Soundbite of 1987 Senate Judiciary Committee confirmation hearing)

Judge BORK: There is a need for stability and continuity in the law. There's a need for predictability in legal doctrine. And it's important that the law not be considered as shifting every time the personnel of the Supreme Court changes.

TOTENBERG: And then Senator Edward Kennedy played a tape of Bork speaking at Canisius College just two years earlier.

(Soundbite of audiotape from 1987 Senate Judiciary Committee confirmation hearing)

Judge BORK: I don't think that in the field of constitutional law precedent is all that important. And if you become convinced that a prior court has misread the Constitution, I think it's your duty to go back and correct it.

TOTENBERG: It was a devastating moment.

Next week, Judge Alito will seek to avoid any such moments. It would likely take a major misstep for his nomination to founder. After all, the Republicans have a 55-vote majority in the Senate, whereas at the time of the Bork nomination, they were in the minority with only 45. Nina Totenberg, NPR News, Washington.

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