Friday, May 14, 2010

Vintage Powe on the History of Supreme Court Confirmation Hearings

Last July, before Justice Sotomayor's confirmation hearing, legal historian Lucas A. ("Scot") Powe, Jr. appeared on NPR's "All Things Considered" to give a brief history lesson. In honor of the hearing to come, here's a taste.
On the first Supreme Court confirmation hearing:

Professor LUCAS POWE (Law and Government, University of Texas; Author, "The Supreme Court and the American Elite, 1789-2008"): Brandeis was a spectacularly controversial nomination. First, he was the first Jew ever to be nominated for the court, and there was blatant anti-Semitism there.

Second, he'd been a very successful lawyer. And after he got really rich, he became what seems to be the first public-interest lawyer in American history, and he started to take on corporations that formerly he would have been taking money from as their advocate, and thus he made a lot of enemies. And former President Taft, Harvard President Lowell, former Attorney General Wickersham, former Secretary of State Elihu Root and several former presidents of the American Bar Association all opposed his nomination.

RAZ: So it was so controversial, they essentially had to have hearings.

Prof. POWE: Yes, they had to have hearings. And it was four months from President Wilson's nomination until the final vote on Brandeis which was, for that era, an incredible amount of time.

RAZ: And so, I mean, what happens, or did Lewis [sic] Brandeis sort of had to show up every day and testify at the hearings?

Prof. POWE: No, Brandeis did not attend his hearings at all. There were people supporting him and obviously people opposing him.

On hearings today:

RAZ: Professor Powe, nowadays it seems, you know, if you make it to the confirmation stage, you're pretty much in. Of course, there was one notable exception in the last 30 years, and that was Judge Bork. Can we really learn anything about these nominees during this process?

Prof. POWE: I don't think that we do. We certainly learn that they are willing to obfuscate, because now we seem to give points to the nominee for the ability to avoid answering the questions being asked.

Take Justice Scalia. When he was questioned by the senators, one senator asked him: Do you consider Marbury versus Madison settled law? And of course, it's been settled law since it came down in 1803, and Justice Scalia refused to answer on the grounds that the question might come before him as a justice.

You can find the full transcript and the audio here.

Image: Brandeis

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