OPINION:
Whoever is nominated by President Trump as Supreme Court justice in the coming days, history makes a strong case that high court nominees should not have to face the inquisition of the Senate Judiciary Committee.
To be sure, in the old days candidates were often rejected by the Senate, especially in the 19th century, when one of every four never made it to the high court.
But the usual route was the full Senate. As late as 1822, a motion to require nominations to be sent to Senate committees failed. Finally, in 1868 the Senate adopted the committee system of scrutiny (when the unpopular President Andrew Johnson was the object of a partisan impeachment effort), but for years thereafter approval of Supreme Court justices by the Judiciary Committee was routine, without much public hearings or much private ado.
The first, more recent high court nominee to appear before the Senate Judiciary Committee was Harlan Fiske Stone in 1928 — and that was because of a grudge by one senator. As attorney general under Republican President Calvin Coolidge, Stone had prosecuted a land fraud case against Sen. Burton Wheeler, Montana Democrat, who was acquitted. His state and party colleague, Sen. Thomas J. Walsh, reacted by opposing Stone’s nomination, forcing a recommittal to the Judiciary Committee. There Stone distinguished himself by fielding often hostile questions.
In 1939, Felix Frankfurter became the second Supreme Court nominee to testify before the Judiciary Committee — this time because he was perceived as controversial. Touted as a liberal legal scholar, he reluctantly appeared, saying it was “improper for a nominee no less a member of the court to express his personal views on the controversial issues before the court.”
Two senators inquired whether he believed in Marxism or communism. Frankfurter replied: “I do not believe that you have ever taken an oath to support the Constitution of the United States with fewer reservations than I have now, nor do I believe that you are more attached to the theories of Americanism than I am. I rest my answer on that statement.”
The invitation for high court nominees to appear before the Judiciary Committee lay dormant for another decade until President Harry Truman’s nod to Sherman Minton caused a stir. A former senator from Indiana, Minton had attracted attention in 1937 for supporting President Franklin D. Roosevelt’s court-packing plan.
The committee voted to invite Minton’s testimony. But he explained in a letter that as assistant majority whip he had to support the president, and the committee dropped its request.
The Judiciary Committee in 1949 was also unsuccessful in getting a majority vote to invite nominee Tom C. Clark, attorney general under Truman, to testify. Liberal groups mounted a telegram and letter campaign criticizing Clark for condoning loyalty investigations and wiretapping, but Clark was strongly supported by fellow lawyers, including four former presidents of the American Bar Association.
Not until the late 1950s did appearing before the Judiciary Committee become standard operating procedure — and in the partisan context of a Republican administration in the White House and a Democratic majority in Congress. For example, Earl Warren, appointed chief justice in 1953, did not appear before the panel, although his liberal opinions later led critics to demand his impeachment. And Warren was approved by the full Senate by a voice vote, not even a roll call.
The point is that the origin of personal appearance before the Judiciary Committees lies less in a historic rationale and more in partisan strategies. And Frankfurter was correct in contending that Congress has no right to delve into the views of nominees as they relate to issues that might come before the court.
Nor can the point be made that only in recent years have nominees been so controversial as to necessitate appearance before the Judiciary Committee. Louis D. Brandeis (1916), Charles E. Hughes (1930), John J. Parker (1930) and Hugo L. Black (1937) were opposed for their liberalism or conservatism, but they all were approved (except Parker, who was rejected) without their appearance.
The result was that their credentials for the highest court became the ultimate litmus test — and not the responses before Senate inquisitors that bear no relation to their tasks of deciding critical legal issues.
• Thomas V. DiBacco is professor emeritus at American University.
Please read our comment policy before commenting.