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FindLaw's Writ - Shenkman: Why Supreme Court Nominations Fail

WHY SUPREME COURT NOMINATIONS FAIL: Six Unsuccessful Bids That Played Into The Culture Wars

By RICK SHENKMAN
Thursday, Aug. 09, 2001

Sometime this year, or maybe next, a vacancy will occur on the Supreme Court. When it does the pundits will remind everybody of the bruising battle over Robert Bork. They will all say that Bork forever changed the politics of judicial appointments. They will all be wrong.

They won't be completely wrong. Bork was big. But by focusing on Bork, they will be missing the larger picture. Step back and you see that standing next to Bork is a long line of failed Supreme Court nominees: Abe Fortas, Homer Thornberry, Clement Haynsworth, G. Harold Carswell, and Douglas Ginsburg.

And as you study our little group portrait, you begin to notice something: All of these nominees failed to win confirmation because their nominations raised social questions about which Americans were deeply divided.

You also begin to notice something else: The fights waged against our little group were vicious and they were vicious beginning with Fortas. It's not Bork whom the pundits should mark as the turning point. It's Fortas.

Civil Rights Battles: The Fate of Fortas, Haynsworth, and Carswell

The six failed nominees listed were nominated by three relatively recent presidents: Lyndon Johnson, Richard Nixon, and Ronald Reagan, each of whom failed to get two of his nominees confirmed by the Senate.

Not since the Nineteenth Century, when the Senate took a far more independent role in court appointments, have presidents been handed this many defeats. Indeed, LBJ was the first president since Herbert Hoover to see a nomination fail. The last president before Hoover to lose a Supreme Court nominee was Grover Cleveland.

LBJ wanted to elevate Fortas to the position of Chief Justice to replace retiring Chief Justice Earl Warren. Warren had, of course, been closely associated in the public mind with the liberal Warren Court's decisions on race and crime. Billboards in the South featured the message "Impeach Earl Warren."

Fortas's nomination failed because he evoked the same angers Warren had. Russell Long referred to Fortas as one of the "dirty five" on the Warren Court who voted for criminals. Fellow Southerner James Eastland observed during the battle that he had "never seen so much feeling against a man as against Fortas."

After Strom Thurmond mounted a successful filibuster against Fortas–killing Fortas's chances as well as that of the liberal Thornberry, who had been nominated to take Fortas's seat–Democrats vowed they would not soon forget what had happened. And they did not, though it was not until Nixon's second nomination that they had their revenge.

On the campaign trail in 1968, Nixon castigated the Warren Court for going "too far in weakening the peace forces as against the criminal forces." After Nixon won the presidency, he was determined to put a so-called strict constructionist on the Court.

Nixon's first nominee, Warren Burger, slipped through quickly during the traditional presidential honeymoon. But the following year Haynsworth, a Southerner, was defeated after suspicions were raised about his commitment to civil rights.

The defeat of Haynsworth served as payback for Fortas: As Senator Gale McGhee (D-WY) conceded, "[h]ad there been no Fortas affair … a man of Justice [sic] Haynsworth's attainments … undoubtedly would have been confirmed."

After Haynsworth's defeat, Nixon, furious, told advisor Harry Dent, "I want you to go out this time and find a good federal judge further south and further to the right." Dent found G. Harold Carswell, who in 1948 had publicly endorsed segregation (and whose nomination was promptly quashed).

From Fortas to Bork: A Marked Increase In Partisanship

We all know about Bork. He was supposed to be the conservatives' fifth vote in a different battle: the battle to overturn Roe v. Wade.

The year before, pro-choice forces had let Antonin Scalia slip by without a fight (only to later regret the day Scalia joined the Court). But when Bork was nominated, the same forces mounted a grassroots campaign the likes of which the capital had never before witnessed in connection with a judicial nomination. The hostility against Bork was so aggressive, it became a verb: All nominees after Bork would have to fear being "Borked."

What changed between the Fortas and the Bork fights, and why? For one thing, the partisanship got worse as the years went by. By the time of Bork's nomination, the battle lines over controversial nominees divided neatly along party lines. Earlier, they had not. For example, seventeen Republican senators voted against Haynsworth — a departure from party loyalty unthinkable a decade later. Just six Republicans voted against Bork.

By the 1980s, the parties had become more ideologically uniform than they ever had been. The conservatives had left the Democratic Party; the liberals had been driven out of the Republican Party.

In 1970, Nixon had made war on moderates like New York's Charles Goodell. By the 1980s, Goodell and all his ideological soul mates–Edward Brooke, Clifford Case, John Sherman Cooper–had either left the party or changed their stripes (like one-time moderate George H.W. Bush).

Pretending That Ideology Is Not the Issue

The sharpening of partisanship in recent years isn't exactly news. But the establishment has been reluctant to accept it. Official Washington likes to pretend that ideology doesn't play the role we all know it does.

That's why senators almost never publicly admit that they oppose a nominee on ideological grounds. Far better to oppose Fortas because he had taken large lecture fees from businesspeople likely to have cases before the Court; to oppose Haynsworth because he had heard cases involving companies in which he held stock; to oppose Carswell because he may have lied to the Senate about his views on race; and to oppose Ginsburg because he had smoked dope with his students at Harvard. (The Democrats actually did not care that he had, but the Republicans did, forcing his withdrawal so that they could remain the party of solid values.)

Only Bork was opposed expressly on ideological grounds, once he had been tarred as an extremist. And still many Democrats claimed that Bork was considered unacceptable because he had concealed his true beliefs — not because of the beliefs themselves. As wags put it, Bork was guilty of "confirmation conversion."

Senators should admit they take ideology into account; there is no shame in that. Nominees' ideological character would not matter if the Court were a mere bystander in the culture wars still raging in America. But the Court is, of course, no mere bystander. The current Court, under its conservative leadership, is now every bit as activist as the liberal Warren Court conservatives once vowed to reel in.

As long as the parties remain internally ideologically uniform, and the Court remains a battleground in ideological wars, our little group of six, beginning with Abe Fortas, is likely to grow larger and larger.


Rick Shenkman is the author of Presidential Ambition and the editor of HistoryNewsNetwork.org. His email address is editor@historynewsnetwork.org.

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