Politicization of the Confirmation
The Supreme Court confirmation process, some historians say, has
become more political than ever, with interest groups throwing
hundreds of thousands of dollars behind or against a nominee,
and legislators appearing to care much more about candidates'
ideologies -- compared to their strict ability to do the job --
than in the past.
perception appears to be widespread. Eight in 10 Americans think
the confirmation process for Supreme Court nominees has become
increasingly political, according to a spring 2005 poll conducted
by the University of Pennsylvania's Annenberg Public Policy Center.
The same poll found that nearly half (46 percent) of 859 lawyers
surveyed blamed the politicization on the political parties, with
about a quarter (27 percent) saying interest groups are responsible,
and almost a fifth (17 percent) placing the onus on the White
For many historians, two major events -- the social activism
of the Warren Court of the 1950s and the bloody confirmation fight
over Judge Robert Bork in 1987 -- are viewed as the moments that
added to the politicization of the confirmation process.
The Warren court
Earl Warren's arrival as chief justice in 1954 coincided with
the court's decision in the famous desegregation case Brown v.
Board of Education. The court's ruling that segregation in public
schools was illegal was the first of many landmark social cases
the court would decide in the coming years that would quickly
mark a change in its influence, and consequently, the public's
interest in the justices making the decisions.
In a July 2005 interview with the NewsHour, University of New
Hampshire history professor Ellen Fitzpatrick said that the Supreme
Court has traditionally been a fairly conservative institution,
rarely leading in advance of Congress or the president himself.
That changed with the Warren court, she said.
"[In Brown v. Board of Education], the court actually took
a step far beyond where either the president or the Congress was
ready to go," she said just days after Justice Sandra Day
O'Connor announced that she was stepping down after 24 years on
the high court.
The court's new, more proactive role continued with several other
civil rights cases in the 1960s and even past Warren's retirement
in 1969. His court's more active approach reached into the 1970s,
with the seminal decision of Roe v. Wade in 1973, which made abortions
The politicization of the confirmation process stems directly
from the court taking on these hot-button issues, according to
Dennis Hutchinson, professor at University of Chicago Law School
and editor of the school's Supreme Court Review.
"It has more to do with the sort of issues that the Supreme
Court is willing to decide on and the stakes the various groups
see in that jurisdiction," he said.
Organizations with interests in issues such as abortion, the
death penalty and homosexuality started to turn their attention
toward the court.
said the first noticeable involvement of interest groups was in
1975, when women's rights groups opposed President Gerald Ford's
nomination of John Paul Stevens. Stevens, now 85, is currently
the oldest member of the court.
Organized groups looking to influence the confirmation process,
Hutchinson said, is "a phenomenon of the last 30 years and
is certainly one that has accelerated in the last 18 years,"
That gathering political storm broke in 1987, when Reagan nominated
U.S. Circuit Judge Robert Bork, whose hearings many historians
consider to be another major turning point in the Supreme Court
"[That was] the sea change with how nomination battles were
fought," said Leonard Gross, professor of law at Southern
Illinois University School of Law and co-author of the 1998 book
"Supreme Court Appointments: Judge Bork and the Politicization
of Senate Confirmations."
"We quickly saw that [with the Senate] just simply relying
on ideology, the Bork nominee was breaking ground," he added.
Concerned Bork would roll back recent civil rights advances,
Democratic senators and liberal interest groups rallied against
the nominee, focusing on his perceived conservative bent.
Within an hour of Bork's nomination, Sen. Edward Kennedy, D-Mass.,
blasted Reagan's choice on the Senate floor.
"Robert Bork's America is a land in which women would be
forced into back-alley abortions, blacks would sit at segregated
lunch counters, rogue police could break down citizens' doors
in midnight raids, children could not be taught about evolution,"
Bork's hearings lasted longer than any previous confirmation
scuffle, dragging on for 87 hours over 12 days, according to Gross.
In the end, special interest groups played a major role in Bork's
58-42 defeat at the hands of the Senate.
Not only had liberal interest groups won the fight, organizations
on both the left and the right raked in donations during the Bork
battle, raising money for their political war chests, Gross' book
Mark Tushnet, a professor at Georgetown University Law School,
said such fundraising has increased with the growth of interest
groups' involvement in politics.
"Interest groups have figured out that the politics of nominations
is a way of raising money and so in anticipation of a big fight
they have accumulated these large war chests," said Tushnet,
author of the 2005 book, "A Court Divided: The Rehnquist
Court and the Future of Constitutional Law."
"It is not that the nomination process has gotten more political,
it is just that the politics of nominations mirrors the general
politics of the time," Tushnet said. "In the 19th century
you had patronage politics and a patronage nomination process.
Now we have interest-group dominated politics and an interest-group
dominated nomination process."
Senate confirmation hearings
The Bork battle also came on the heels of another change
in the confirmation process: media interest.
Bork's hearings before the Senate Judiciary Committee were only
the third to be televised nationally, an event that began with
the airing of the O'Connor hearings in 1981.
"The hearings have become sort of a show unto themselves,"
Gross said. "I think that's certainly enabled the public
to get more energized by it."
generations, nominees didn't even have to go before the Judiciary
Committee, let alone face television cameras as they testified.
No nominee appeared before the committee until 1925 and it did
not become common practice until the mid-1950s, according to the
University of Chicago's Hutchinson. Instead, nominees would typically
rely on a senator from their home state to vouch for them, according
to UNH's Fitzpatrick.
Another tradition that appears to have been thrown by the wayside
in recent years is voice votes on nominees.
Not since 1965, a period that includes votes on some 17 nominees,
has the Senate used a voice vote to consider a nominee, even though
four of those were unanimous votes. Before 1965, more than 60
percent of votes -- all of them confirming the nominee -- were
taken with a voice vote.
"That may just be an indication that [it has become] more
formalized," Gross said. "It is a whole much more elaborate
process from start to finish than it once was."