Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality
Resurrection: The Confirmation of Clarence Thomas
Strange Justice: The Selling of Clarence Thomas
After Supreme Court nominations led to two recent slug-fests (Robert Bork’s rejection in 1987, Clarence Thomas’s confirmation in 1991), many people believed that “the process” of clearing appointments to the Court had gone seriously awry and needed repair. Senator John Danforth wants confirmation hearings to be treated like trials, preserving the assumption that a nominee is innocent of all charges brought against him or her, until and unless such charges can be proved beyond a reasonable doubt. Others have proposed different remedies—that trained cross-examiners, instead of senators on the judiciary committee, question the nominee; that the hearings be held in secret (or not held at all), that witnesses against the nominee be restricted in what they can allege. Stephen Carter, in The Confirmation Mess, shows how unpracticable these and other remedies would be.
There is no reason to think “the process” is flawed. After Watergate, some concluded that there was something wrong with the presidential electoral process, and cast about for ways of reforming it. But the electoral machinery does not guarantee that a good man will be chosen, only that the choice will reflect the electorate’s wishes. All it can do is give the people what they want, and in 1968 people voted overwhelmingly for Nixon and Agnew (43 percent) or for Wallace-Lemay (13 percent), a 56 percent vote to repress what annoyed Americans at the time (campus revolt, city riots, antiwar protesters). The rule with the election process is the same as for computers: garbage in, garbage out. The same could be said of the Supreme Court nomination process. There is nothing wrong with the machinery of public hearing, just with the attitudes of those using it. When a chairman of the Judiciary Committee cannot make up his mind what the hearings should or should not investigate, the best machinery in the world will not improve the furnishings of his mind.
Some nominees have taken the position that they have no responsibility to answer questions about their views. Only their public record should be examined. In 1939, Felix Frankfurter refused to appear before the committee, until his friends convinced him that he would be rejected if he did not. But Frankfurter had a point: no nominees had testified before the Senate until 1925, when Harlan Stone became the first to do so. The level of appointments in the past did not seem to suffer significantly because no hearings were held.
Besides, the Senate’s role is to “advise and consent,” not to make appointments on its own. Over the course of seventy-five years, from 1894 to 1968, only one nominee (John J. Parker) was rejected—leading people to think the Senate’s role as a rubber stamp would continue. But this was the period of an expanding “imperial presidency,” when Congress ceded many powers to the executive branch. Not surprisingly, the rejection of justices reentered our political life late in Lyndon Johnson’s presidency (with resistance to his nominees Fortas and Thornberry) and early in Richard Nixon’s (with the rejection of two…
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