Five Myths that Hound Supreme Court Appointments

As the Senate starts its push to get confirmation votes for stalled judicial nominees this year, let us debunk five of the recurring myths hounding the highest court of the land.

1. Supreme Court justices should have prior judicial experience.

When President Obama appointed Elena Kagan to the US Supreme Court in January of 2009, she debunked what was perhaps the most prevalent myth about who makes it to the nation’s highest court: that you need to have been a judge before you can qualify to be a Supreme Court justice.

That lack of judgeship in her career put Kagan, former solicitor general and former dean of Harvard Law School, at odds with two-thirds of justices in history and with the nine current justices, all of whom served on federal appeals courts prior to their Supreme Court appointment. However, that doesn’t mean judgeship is a requirement, or that confirmed nominees without judicial experience are unheard-of. The last justice to join the court without past judicial experience was William Rehnquist in 1986. Rehnquist, like Kagan, was nominated to the court from a high-ranking position at the Justice Department.

Of the 112 justices the Supreme Court has ever had, forty-one have never held prior judicial experience.

2. Presidents are surprised by justices they personally pick. 

With few exceptions, the “surprise” justices were either picked for non-ideological reasons or were foolishly misjudged by the President making the appointment. Republican President Dwight Eisenhower, for example, is famously reported to have said the two biggest mistakes of his presidency were appointing Earl Warren and William Brennan, the leading forces behind the aggressively liberal court of the 1960s.

But Eisenhower chose Warren—governor of California—not because of ideological affinity but because of a political deal. And the Democrat Brennan got the nod because, at a time when demographics mattered more than today, he was a Northeastern Catholic. So while Eisenhower may have been disappointed, he should hardly have been surprised, as he did not make his selections with an eye to replicating his own ideology in the court.

Another example is the retired Justice David Souter, whom President George Bush expected to be a reliable conservative but quickly emerged as anything but. Bush, however, had no one to blame but himself. As became obvious at his confirmation hearing, Souter’s brand of moderate New England Republicanism was completely at odds with the pro–states’ rights, pro–prayer in schools, pro-life, anti–affirmative action views that make for a judicial conservative on the modern court. In other words, Souter was not a surprise pick; Bush just blew it.

3. SC justices are like baseball umpires.

“Judges are like umpires,” would-be SC Chief Justice John G. Roberts declared in the opening remarks to his own confirmation hearings. “Umpires don’t make the rules; they apply them.”

But since the Roberts hearings, the umpire metaphor has become synonymous, at least in public debate, with judicial restraint, to the idea that judges are merely arbiters, that their job is not to set aside precedent and create law but to decide cases on the basis of established law.

It has become fashionable for Supreme Court nominees, and sometimes the Justices themselves, to deflect controversy and play down their own importance by suggesting judicial decision-making involves nothing more than the simple application of clear, undisputed rules.

There is no rulebook for constitutional interpretation. In trying to give meaning to inherently elastic constitutional concepts like “equal protection of the laws” and “due process,” and in interpreting federal statutes that are often less than precise, Supreme Court justices inevitably make subjective value judgments that are colored by their individual views about right and wrong, fair and unfair, wise and unwise.

Conscientious judges understand that the law is much more than a reflection of their own personal preferences. But in the hard cases, the political cases, the cases tinged with moral judgment, where constitutional language and history provide no single irrefutable answer, a judge’s formative experience matters—family, geography, mentors and heroes—they cleave liberal from conservative and inescapably  insinuate themselves into the law.

4. A nominee’s performance during Senate hearings will affect the final deliberation.

When Supreme Court nominees appear before the Senate Judiciary Committee, Americans across the country will be glued to their screens, watching every utterance and gesture the nominees make from the witness chair with obsessive fervor.

Despite all the attention, though, the hearings are unlikely to make a difference in the final vote.

It was in 1981 when Justice Sandra Day O’Connor took to the witness stand that confirmation hearings that confirmation hearings started becoming televised events. Since then, only one nominee has been voted down following his hearings: Judge Robert Bork, the conservative scholar who, at his hearings, decided to argue with the senators over his controversial views. True to his unyielding beliefs, Bork handed Senate Democrats the political ammunition to defeat him by denying the existence of a constitutional “right to privacy” that most Americans had come to embrace as an inalienable right.

Bork’s nomination was contentious from its outset, but his performance at the confirmation hearings did him in.

Nominees since Bork have not made the same mistake. Instead, they have refused to divulge their views on controversial legal questions, politely but firmly declining to answer on the grounds that such issues might someday come before the court and that prejudging their merits would be improper.

The lack of substantive legal discussion is why legal scholars and commentators frequently dismiss the hearings as a form of a theatrical performance—stylized, ritualized and devoid of suspense.

5. We’re stuck with a flawed confirmation process.

The confirmation process is not dictated by the Constitution or any statute; rather, it is a creature of political custom and tradition. As such, it can change readily, but only if the president and the Senate agree on how.

Some of the most well-known aspects of the confirmation hearings, such as senatorial grilling of the nominee and the televising of the proceedings, are of relatively recent vintage—first started in 1955 and 1981, respectively, noted the legal commentator Benjamin Wittes in his book Confirmation Wars.