In 1969 a Democratic Senate rejected Richard Nixon’s nomination of Clement Haynsworth to the Supreme Court to replace Justice Abe Fortas. It was the first time the Senate had done this in about forty years. The rejection may have been because of some pro-segregation decisions he made while on the Circuit bench. Haynsworth was opposed by many Republicans, too, as well as the NAACP. But some Democrats were still angry about the Republicans’ rejection of Fortas as Chief Justice late in LBJ’s term, and his subsequent forced resignation, which gave Nixon one more seat to fill after making Warren Burger the Chief Justice.
Nixon responded to the Senate’s rejection of Haynsworth by nominating G. Harrold Carswell, a Federal District judge who had recent been approved by the Senate as a Circuit judge. The attention of a Supreme Court nomination brought more scrutiny, revealing Carswell’s vocal support of racism, including a speech in which he said that he would “yield to no man” in his “firm, vigorous belief in the principles of white supremacy.”
The debate over his confirmation also featured the claim that - racist or not - Carswell was a mediocre judge. Nebraska Republican Roman Hruska offered a curious defense: Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters, and Cardozos.
When the Senate rejected Carswell, too, Nixon nominated Minnesota conservative Harry Blackmun. Blackmun had been put on the Eighth Circuit Court of Appeals by Dwight Eisenhower and was a close personal friend of Chief Justice Burger. The Senate approved his nomination unanimously.
In the summer of 1971, Justices Hugo Black and John Harlan both fell ill, retired, and died soon after. In those days people didn’t automatically think of Justices by their party affiliations. For us today, though, I will mention that Black was appointed by FDR and Harlan by Eisenhower.
Nixon’s list of possible candidates surprised people for their lack of distinction. He withdrew his actual first two candidates when the American Bar Association said they were unqualified. He then nominated Lewis Powell and William Rehnquist for the two seats. Powell was approved with a single dissenting vote. Twenty-six Senators voted agains Rehnquist: twenty-three Democrats and three Republicans.
It is worth noting that this was a Democratic-controlled Senate, with fifty-four Democrats and forty-four Republicans. Despite the contention surrounding the Haynsworth and Carswell nominations the Senate retained the understanding that Presidents chose Justices.
A couple of facts about Rehnquist are also worth noting. First, during the Court’s deliberation over Brown v. Board of Education in 1954, Rehnquist was a clerk to Justice Robert Jackson. He argued vociferously in favor of segregation. He also wrote a memo for Jackson in favor of upholding Plessy v. Ferguson. Second, Rehnquist led a vigorous and well-financed operation to suppress the votes of Mexican-Americans in Arizona through the 1960’s.
Supreme Court nominations were less contentious for the next fifteen years. Gerald Ford’s appointment of John Paul Stevens was confirmed by a majority-Democratic Senate unanimously. Ronald Reagan’s nominations of Sandra Day O’Connor and Antonin Scalia were unanimously confirmed by majority-Republican Senates. William Rehnquist was confirmed by a vote of 65-33. All these votes mean that both parties went along with the President’s choice.
The exception was Robert Bork. Reagan nominated Bork in 1987 and the choice was more than controversial, for reasons of judicial philosophy and because of his personal history. Twenty-three years after the Brown decision Bork still argued that it was wrong and should be reversed. Bork invented the idea of “originalism” to justify a defense of a reactionary reading of the Constitution as meaning only what the people who wrote it meant. This has justified decisions against women’s rights and against racial equality.
Bork also played a major role in the Watergate affair. In 1973, Nixon ordered his Attorney General, Elliot Richardson, to fire Special Prosecutor Archibald Cox for requesting the Oval Office tapes. Richardson resigned rather than carry out the order. His deputy, William Ruckelshaus, also resigned instead of firing the special prosecutor. But Solicitor General Bork went ahead and fired Cox as soon as those resignations made him Acting Attorney General. Nixon promised him the next open seat on the Supreme Court as a reward, but as we know, Nixon resigned a year later before an opening appeared.
Two more Republican nominations aroused little Democratic objection. After the Senate rejected Bork, Reagan nominated Anthony Kennedy and he was confirmed unanimously. George Bush nominated David Souter and - after some questions about a less-than-notable judicial career - he was confirmed by the majority-Democratic Senate.
Then… Clarence Thomas. When Justice Thurgood Marshall retired, President Bush nominated this forty-three-year old who had been a judge for a minute and whose principal qualification appeared to be that he was Black and a conservative Republican. In those days, Presidents still asked for an evaluation of their Court nominees by the American Bar Association. In Marshall’s case the White House asked publicly, but then privately pressured the ABA for a positive assessment. He received a minimally acceptable rating.
In the Senate Judiciary Committee hearings, Judge Thomas was, let’s say, reticent. His years on the Court since then have demonstrated that he is that way every day. He is known for rarely speaking from the bench. Much of the concern about him stemmed from the fact that he was a relatively young and undistinguished Black beneficiary of affirmative action who nevertheless opposed affirmative action but was nominated to succeed a distinguished Civil Rights veteran, Thurgood Marshal. Once his nomination went to the full Senate, somebody leaked the FBI report about him from Anita Hill, his subordinate at both the Department of Education. This changed the discussion from judicial philosophy to sexual harassment.
This was thirty years ago. It may be difficult to imagine, but at the time it seemed that most of the Senate didn’t believe there was such a thing as sexual harassment. One Senator was incredulous that a female protege would meet and dine with a harassing mentor after he was no longer her forma supervisor. In any case, the entire affair was contentious and Professor Hill’s testimony was carried live on television. The vote was close: 41 Republicans and 11 Democrats in favor; 46 Democrats and 2 Republicans opposed. A very little arithmetic will tell you that, despite Thomas’s complaint that he was the victim of a high-tech lynching (yes, that was his word) he was approved by a majority-Democratic Senate. He is currently our longest-serving Justice and he is only 72.
During Bill Clinton’s Presidency he had the opportunity to replace Justices Byron White and Harry Blackmun. He appointed Ruth Bader Ginsburg and Stephen Breyer. They were accepted by large, mostly non-party votes.
Perhaps the two parties had built up a reservoir of testiness with each other by the 21st century. When William Rehnquist retired in 2005, President George W. Bush withdrew John Roberts’s nomination to replace Justice O’Connor and nominated Roberts instead to be Chief Justice. He was grilled about his judicial philosophy, but in the end half of the Senate Democrats voted to approve him anyway. Bush nominated Samuel Alito for the Associate Justice seat. He received a grilling and was only supported by four Democrats in a largely party-line vote.
Barack Obama’s nominees also received partisan treatment. Judge Sonia Sotomayor had been put on the federal District Court by George Bush and on the Circuit Court of Appeals by Bill Clinton. Even in those hearings there seemed to be concern about her gender, her ethnicity, and her support of gay rights. During her confirmation hearings for the Supreme Court, her opponents kept yelling about a comment she made in a speech about the ability of a “wise Latina woman” to understand some things that a white man might not. She was forced to clarify that remark, although I thought it was quite clear and definitely true. House Speaker Newt Gingrich astonishingly called her a racist! Sixty-eight Democrats voted for her. They were joined by only nine Republicans. Some observers said that Republican hostility was a result of residual anger over Bork’s rejection. I’ll just remind you that twenty-two years had passed and seven other Justices approved in that time.
Then there was Elena Kagan. Liberals were concerned about her reputation as a moderate and she was actually endorsed by conservative Justice Samuel Alito. That didn’t stop the Republicans from grilling her and mostly voting against her.
I think that the Merrick Garland affair is still fresh in everyone’s memory. I think Mitch McConnell’s refusal to even entertain President Obama’s nomination of another judicial moderate is being discussed enough right now that I don’t have to explain it. I think it is sufficient to account for the contentious partisan receptions that Neil Gorsuch and Brett Kavanaugh received in their confirmation hearings and in the votes to approve them. I certainly think it explains the intense hostility to Trump’s nomination of Amy Coney Barrett and Mitch McConnell’s insistence on a confirmation vote little more than a month before the election.
But there are some other observations that must be made.
First, I am old enough to remember when Justices weren’t identified by political party, as if their decisions were completely invalid if their party affiliations didn’t align with yours. I think that party label became a regular thing when the Court decided the 2000 Presidential election. I think it grew stronger when the Court declared money to be speech in 2010 and when it gutted the Voting Rights Act in 2012. There can be no doubt that this undermines the authority of the Judicial Branch.
Second, Republicans have grown dissatisfied with Republican affiliation as a qualification for judges they choose. It is a notorious fact that Republican Presidents have appointed Justices who were later denounced as “liberals” by self-styled judicial conservatives. (And I say they style themselves conservative because they are as activist as anybody in reversing precedent and overturning legislation, just precedents and laws that they don’t like.) Consider the Court’s still-controversial decision in Roe v. Wade, which eliminated the ability of the states to outlaw abortion. The vote in that case was 7-2. Only two of the seven Justices in favor had been appointed by Democratic Presidents. The other five, who would have made a majority all by themselves, were all Nixon and Eisenhower appointees. The two opposed? One Democrat, one Republican.
Justice O’Connor was a Goldwater Republican, appointed to the Court by Ronald Reagan. Conservatives complained endlessly about her supposed liberalism, apparently because she didn’t immediately overturn Roe v. Wade. She opposed affirmative action and denied the role of race in death penalty cases. But she also opposed intrusive searches and school prayer, so she was an enemy.
Then there was Justice Anthony Kennedy, also a Reagan appointee. He voted with Chief Justice Rehnquist as much as any other Justice. He opposed gun control and supported dark money in elections. But he, too, supported Roe and he joined the majority in defense of gay marriage, so… another enemy.
And remember Harry Blackmun? The Justice appointed by Nixon after his nominations of Clement Haynsworth and Harold Carswell failed. He may be the most interesting case. He was a conservative Republican who Republicans demonized as one of the most liberal Justices on the Court by the time he retired in 1994. He wrote the Roe v. Wade decision. He wrote a memorable dissent, again on privacy grounds, when the Court upheld a Georgia law criminalizing oral sex, a law, incidentally, that was only enforced against gay people.
Which brings me to my final point. How is it that “conservatives” have grown so hostile to their own appointees? Does sitting on the Supreme Court bench eventually turn conservative judges into liberals? Has the midpoint between liberal and conservative moved dramatically to the right over the last seven decades? One way to think about this is to look at the cases that have been most contentious.
Consider Roe v Wade. Our present-day conservatives like to talk about “originalism”, by which they claim to mean the intentions of the men who wrote the Constitution. I’m prepared to accept the argument that both Madison and Hamilton would have allowed the states to outlaw abortion, maybe. But I have to ask: If that were true, would it have been because they were opposed to people’s privacy and control of their bodies? Or would it have been because they were men who believed in the subordination of women?
Our present-day conservatives were outraged about decisions legalizing homosexuality. Is that really because they think the Court shouldn’t be stepping into this? Or is it really because they don’t believe in the First Amendment with its ban on establishing their restrictive sexual view as the national religion? Is it really because they just don’t believe in a right of privacy?
In Shelby County v Holder, the Court’s “conservative” majority gutted the Voting Rights Act, leading to an immediate wave of voter suppression laws. Did our conservatives care about safeguarding the rights of states to make their own voting laws? Or were they more concerned with undermining the Fourteenth Amendment, which was intended to protect the rights of all citizens?
I may as well cite Citizens United v FEC, too. The Court’s conservative majority overturned the Bipartisan Campaign Reform Act of 2002. They said that limiting the amount of money corporations and lobbies could spend on campaign propaganda was an infringement on free speech! Which begs the question: Did they really care about the First Amendment? Or did they simply want to protect attempts by the richest Americans to buy elections.
So what does the word “conservative” even mean? These examples all show that the “judicial conservatives” are activists in overturning legislation they don’t like and in ignoring the Constitution when it suits them. What are they “conserving” then? I think the answer has already been made clear:
Shelby v Holder conserves white supremacy by allowing the states to suppress votes.
Citizens United conserves the oligarchy of the wealthy by allowing them to buy elections.
Every decision weakening Roe v Wade conserves patriarchy by denying women control over their bodies.
Each “freedom of religion” decision that justifies discrimination conserves bigotry, whether against gay people or against other religions.
If we say that the US is an oligarchy of wealthy, white, heterosexual, Christian men then protecting that oligarchy is, indeed, conservatism. But our conservatives angrily deny all that. In fact, they say that any such claim is unpatriotic and evidence that the speaker hates America. They say America is a land of freedom and equality. All of which shows that their judicial philosophy is not conservative at all. It is radical, it is activist, it is white supremacist, it is male supremacist, it is heterosexist, and - most fundamentally - it supports an oligarchy of the richest.
