Justice Stevens retirement portends long, hot political summer
Confirmation of Supreme Court nominees has not always been so contentious. But with the defeat of Robert Bork in 1987, nominees' political positions as well as their judicial qualifications have been probed. This will likely be the case in replacing retiring Justice John Paul Stevens.
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The process became somewhat more contentious through the following several decades. But in general, opponents targeted only personal failings or shortcomings of nominees, not judicial philosophy.
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“If you found a skeleton in their closet, you could go after them,” says Leonard Gross, a law professor at Southern Illinois University.
Thus in 1970, Nixon nominee G. Harrold Carswell was rejected after widespread criticism by Democrats and some Republicans that his legal acumen was mediocre.
That all changed in 1987. Federal appeals court judge Robert Bork, nominated by President Reagan to replace the moderate Supreme Court Justice Lewis Powell, quickly ran into trouble with Democrats and liberal interest groups due to his conservative views.
Few of Bork’s opponents questioned his professional qualifications. Instead, they focused on his judicial philosophy, which holds that many liberal judges have gone too far in rulings, in essence legislating from the bench.
Bork was defeated in the Senate by a vote of 58 to 42.
Since then “it’s fair to say there has been much more focus on judicial ideology,” says Gross, co-author of a book on Bork and the politicization of Senate confirmations.
Subsequent nominees generally have learned from Bork’s mistakes, and been less willing to be forthcoming with blunt answers to questions about their ideological beliefs.
But since Bork both parties have learned that there is possible advantage in trying to portray nominees as people who are out of the nation’s political mainstream. Interest groups have discovered that there is lots of money to be raised and attention to be gained by leading the fight against nominees with whom they disagree.
Meanwhile, Washington itself has become more and more partisan.
What’s that led to? A situation in which almost every Supreme Court nomination will be deemed “controversial” by a president’s political opponents.
There was substantial opposition in the Senate to the nominations of both Chief Justice John G. Roberts and Justice Sonia Sotomayor, points out Lawrence Baum of Ohio State University. Yet both had unassailable professional credentials.
“Neither Roberts nor Sotomayor would have been controversial in an earlier time,” says Baum.
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