Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations

612 Pages·1998·1.48 MB·English

by  Norman Vieira

Supreme Court Appointments : Judge Bork
title: and the Politicization of Senate
Confirmations
author: Vieira, Norman.; Gross, Leonard
publisher: Southern Illinois University Press
isbn10 | asin: 0809322048
print isbn13: 9780809322046
ebook isbn13: 9780585030166
language: English
United States.--Supreme Court--Officials
and employees--Selection and appointment-
subject -History, Judges--Selection and
appointment--United States--History, Bork,
Robert H, Political questions and judicial
power--United States.
publication date: 1998
lcc: KF8742.V54 1998eb
ddc: 347.73/2634
United States.--Supreme Court--Officials
and employees--Selection and appointment-
-History, Judges--Selection and
subject:
appointment--United States--History, Bork,
Robert H, Political questions and judicial
power--United States.
Supreme
Court
Appointments
Judge Bork and the Politicization of
Senate Confirmations
Norman Vieira and Leonard Gross
Southern Illinois University Press
Carbondale and Edwardsville
Copyright © 1998 by the Board of Trustees,
Southern Illinois University
All rights reserved
Printed in the United States of America
01 00 99 98 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Vieira, Norman.
Supreme court appointments: Judge Bork and the politicization of
Senate confirmations / Norman Vieira and Leonard Gross.
p. cm.
Includes bibliographical references and index.
1. United States. Supreme CourtOfficials and employeesSelection and
appointmentHistory. 2. JudgesSelection and appointmentUnited
StatesHistory. 3. Bork, Robert H. 4. Political questions and judicial
powerUnited States. I. Gross, Leonard, 1951- . II. Title.
KF8742.V54 1998
347.73'2634-dc21
ISBN 0-8093-2204-8 (cloth: alk. paper)
98-15735
CIP
The paper used in this publication meets the minimum requirements
of American National Standard for Information SciencesPermanence
of Paper for Printed Library Materials, ANSI Z39.48-1984.
Page v
Contents
Preface vii
PART ONE. The Bork Nomination
1. Exit Justice Powell
2. Enter Judge Bork
3. Battle Lines Form 22
4. The First Crucial Issue 37
PART TWO. Committee Hearings
5. The Judiciary Committee 53
6. The Ultimate Stakes: Controlling the Direction of the Court 67
7. The Right of Privacy: Contraception, Abortion, and Sterilization 71
8. Civil Rights 80
9. The Reverend and the Rabbi: Church-State Issues 88
10.Free Speech 99
11.Ethical Questions: Watergate Revisited 106
12.The ABA 116
13.Other Witnesses 138
14.The Media Campaign: Polling and Advertising in the 151
Confirmation Process

Page vi
PART THREE. Action by the Senate
15. Mounting Pressure: The Uncommitted Senators 163
16. The Struggle Outside 170
17. The Senate Debate: Battling for History's Verdict 175
18. The New Nominees: Ginsburg and Kennedy 182
PART FOUR. Judicial Confirmations in the Post-Bork Era
19. Judge Souter: A Stealth Nominee 193
20. Clarence Thomas: Round One 200
21. Clarence Thomas: Enter Anita Hill 209
22. Judge Ginsburg: A Democrat Faces the Confirmation Process 225
23. Judge Breyer Revisited 237
24. The Bork Precedent: A Search for Meaning 247
Notes 257
Index 301
Page vii
Preface
This volume on Supreme Court appointments grew out of the
controversy surrounding President Reagan's nomination of Judge
Robert Bork to succeed Justice Powell on the Supreme Court.
Because few knowledgeable observers questioned Judge Bork's
professional qualifications, opposition to Bork quickly focused on his
judicial philosophy. The focus on ideology raised a crucial issue as to
whether it was proper for the Senate to reject for ideological reasons
an otherwise qualified nominee. This book analyzes the Bork
proceedings and the role of judicial ideology in the confirmation
process. It also examines all of the post-Bork appointments to the
Supreme Court. In these endeavors, we have relied on interviews with
major participants in the confirmation process, as well as on
traditional primary materials like committee hearings and Senate
debates. We are grateful for the help of Gregg Walters, Nancy Stanley,
and other research assistants.
It is significant that the fallout from the Bork confirmation battle has
not abated in more than ten years following the event. Indeed, the
impact of the Bork precendent has now reached beyond Supreme
Court appointments to affect the nomination of judges for all federal
courts and even the selection of candidates for cabinet and subcabinet
positions. Just this year, the Washington Post reported that "[n]early
10 percent of the 846 seats on the federal bench are now empty, and
the Senate has confirmed only 53 judicial nominees over the past two
years," compared with 101 confirmations in 1994 alone. Chief Justice
Rehnquist has warned that "vacancies cannot remain at such high
levels indefinitely without eroding the quality of justice" (Washington
Post, Jan. 3, 1998, A20). But Senator Orrin Hatch, who chairs the
Senate Judiciary Committee, responded that the problem stems from
President Clinton's nomination of "activist judges," and other
Republican senators have said that they would
Page viii
strongly oppose the confirmation of judicial nominees who hold
"activist views." It is apparent, therefore, that the issue of ideological
qualification for service on federal courts has lost none of its vitality
in the years following the Bork proceedings.