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Supreme Court History

In a prelude to the expected battle over the next Supreme Court justice nomination, an historian explains the selection and confirmation process and the past battles between Congress and the president.

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  • GWEN IFILL:

    It has been nearly a dozen years since the president and Congress have had to grapple with a Supreme Court vacancy. Franklin Roosevelt placed nine Justices on the court, Eisenhower, five, Nixon and Reagan, four each. So how will the selection, nomination and confirmation process measure up this time?

    For that we turn to NewsHour regular Ellen Fitzpatrick; she's a professor of American history at the University of New Hampshire. Welcome back Ellen.

  • ELLEN FITZPATRICK:

    Thank you, Gwen.

  • GWEN IFILL:

    Well, now we're geared up we're told here in Washington for another titanic struggle. Has it always been this way?

  • ELLEN FITZPATRICK:

    It's been this way for quite a while. I think if you look at the long history of the Supreme Court, in point of fact almost always the Justices that are nominated by the president are in fact confirmed. Only about a fifth, I think, over the entire scope of American history were rejected by the Senate.

    And the vast majority of those were rejected in the 19th Century, mostly due to reasons of partisan politics. But in recent years, particularly since the Warren Court, there have been some highly ideological battles, and it certainly seems to be the case that we're looking towards another one of those coming up.

  • GWEN IFILL:

    How often are we in these battles talking about ideology, and how often are we talking about personality?

  • ELLEN FITZPATRICK:

    I think that personality is probably less important in recent years than ideas have been. And part of this, I think again I would point to a shift that occurred with the Warren Court and in particular with the decision that was made in 1954, the Brown versus Board of Education case.

    Mostly, the Supreme Court is a fairly conservative institution, and rarely does it lead in advance of Congress or the president himself. But in the famous desegregation case, the court actually took a step far beyond where either the president or the Congress was ready to go, in striking down Plessey (v. Ferguson), overturning Plessey, and ruling that segregation and education was illegal and that separate was inherently unequal.

  • GWEN IFILL:

    When the activists talk about what's at stake with the Supreme Court nominations, they talk about issues like cultural touchstones like segregation, but also increasingly in recent years about abortion, about issues like that. Have they always — has the court always been a cultural touchstone like that for these kinds of debates?

  • ELLEN FITZPATRICK:

    Again, I see this as mostly a product of the 20th Century, when you see a much more activist federal government, and you're seeing conservatives responding to that by trying to trim the sails of the president and the Congress and looking to the courts to do that.

    In the 1930s, of course, FDR infamously attempted to expand the size of the Supreme Court because he was facing frustrations in having his New Deal legislation passed. And that was a way of trying to trump the power of the court itself. And in that case, it was an effort to really vindicate the power of the federal government.

    Even issues like the Roe v. Wade case have fundamentally have come down in some sense to a struggle over the power of the states to rule and create laws over their citizens, versus the power of the federal government and the Constitution itself to supersede the states. And that has been a very contentious struggle, really since Brown and indeed even earlier than that.

  • GWEN IFILL:

    Since you talk about power, part of the discussion and the debate that went on over the weekend about this has been about whether the president gets his way, basically, what is the definition of advice and consent. What has been the history of that?

  • ELLEN FITZPATRICK:

    Well, the president often does get his way. And I think there's a sense of trying to defer to the president, and ironically-, I think the history is really full of the ironies in this instance.

    As these hearings have become more and more contentious in the 20th Century, we're also looking at a period in which most of the nominees have in fact been confirmed. And the hearings themselves historically in the 20th Century have become more and more a prominent feature of the process in which special interest groups and others mobilize. There's a grilling before the Senate Judiciary Committee.

    These hearings were not even televised until 1982. The nominees did not even come to the Senate until Harlan Fiske Stone started that precedent in 1925, and before 1929 reporters were barred from the procedure so it's become a more public arena in which, as one would expect, all the political differences of our times are being played out.

  • GWEN IFILL:

    And yet when we hear about these kinds of disputes, we think of the names Bork, Thomas, Haynesworth, Carswell, people, three of those four who were not confirmed, but all of whom were kind of huge battles at the time, battle royale between the Senate and president.

  • ELLEN FITZPATRICK:

    Yes. They were. And again, there's an effort to try to suss out who these nominees are on an ideological basis. But consider in 1916 when Louis Brandeis came up for confirmation, Woodrow Wilson had nominated him, he was an extraordinarily important legal mind, a very successful lawyer, an advocate really for social justice; the New York Times editorialized at that point that one thing that we did not want on the Supreme Court was an advocate for social justice.

    Consider the times. And this was a sense that somebody with a record who had stood for a series of issues having to do with social progress was a bad Justice. And so in a way, in the later 20th Century, the idea to try to find a kind of stealth nominee with no record, to avoid this kind of debate and unseemly process that perhaps will unfold.

  • GWEN IFILL:

    Not possible to find anybody without a record any more in the age of Google, I guess.

  • ELLEN FITZPATRICK:

    I guess that's right.

  • GWEN IFILL:

    Ellen Fitzpatrick, thank you so much.

  • ELLEN FITZPATRICK:

    Sure.

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