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Shallow historical roots for Sotomayor's public grilling

A Supreme Court confirmation hearing is a Washington tradition that seems as old as the Constitution – but isn’t.

By / June 11, 2009

US Supreme Court nominee Sonia Sotomayor was on Capitol Hill June 10 to meet with senators. Her confirmation hearing is set to begin July 13 before the Senate Judiciary Committee.

Yuri Gripas/Reuters

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The atmosphere will be hushed and the demeanor of the participants solemn. On one side will sit the members of the Senate Judiciary Committee, shuffling papers, jealous of their power to approve or reject. Before them will be the nominee, achingly close to the prize of a lifetime – a seat on the most powerful court in the land.

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A Supreme Court confirmation hearing – an ordeal Sonia Sotomayor is set to undergo beginning July 13 – is a Washington ritual so steeped in tradition it seems rooted in the Constitution.

But it isn’t. It isn’t even as old as Judge Sotomayor herself.

It all started in 1955

The whole high-court-nominee-behind-a-table-with-senators-in-attendance thing didn’t begin until about 1955, says Lawrence Baum, an Ohio State University political scientist and an expert on the confirmation process.

“Historically speaking, it is a very recent phenomenon,” he says.

Yes, the Senate as a whole does have the power to accept or reject Supreme Court justices, cabinet nominees, ambassadors, and so on. That is in the Constitution. And the Senate has always been fond of giving a hard time to Supreme Court wannabes. Since 1789, nearly one-quarter of all such nominees have had their nominations rejected, withdrawn, or otherwise denied. (The loss rate for cabinet nominees is only 2 percent over the same period.)

An unseemly thing to do

But for much of the nation’s history, the Senate didn’t hold regular committee hearings on Supreme Court nominations. Nominees would have thought it unseemly to appear in person to argue their own cases, anyway.

Louis Brandeis, for instance, faced intense opposition after President Woodrow Wilson tapped him for the high court in 1916, due to his liberal beliefs and Jewish heritage. The Senate Judiciary Committee argued over Brandeis at a heated meeting. But the nominee himself did not speak. (Eventually, he got the job.)

Things changed in the mid-1950s. Senate conservatives were shaken by the Supreme Court’s Brown v. Board of Education decision, which held segregated schools to be unconstitutional. The Red Scare was in vogue, and senators wanted to ensure they weren’t putting commies on the court.

“They developed more of an interest in questioning nominees to find out what their views were,” says Dr. Baum of Ohio State.

First personal appearance: Judge John Marshall Harlan

In 1955, President Eisenhower picked federal Judge John Marshall Harlan for the Supreme Court. He personally appeared before the Senate Judiciary panel – the first sitting judge to do so.

Since him, every nominee has testified. Some have enjoyed it more than others. But today it would probably be impossible for a Supreme Court hopeful to refuse to appear.

As much as he or she might like to.

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