Judging a justice

David Greenberg is a professor of history and media studies at Rutgers University, a columnist for Slate and the author of "Nixon's Shadow: The History of an Image."

Starting in the late 1960s -- when the expansive jurisprudence of the Supreme Court under Chief Justice Earl Warren became a lightning rod for political controversy -- fierce ideological clashes over high court nominees have become the norm. Political authority came under assault, and the recurrence of divided government -- a Senate controlled by one party, the White House by the other -- made defiance of the president’s will much more frequent than it had been at any time since the 19th century. Ever since, this new, divisive dynamic has led us to expect ugly court confirmation battles.

Occasionally, though, presidents have made politically shrewd choices that have checkmated the other side. President Obama’s selection of Sonia Sotomayor may be just that sort of choice.

Paradoxically, what has made nomination battles so nasty is the widespread but naive assumption that the law, and Supreme Court justices in particular, should be free of “politics.” Jurisprudence, we’re told, is an empyrean realm in which ideology can’t be discussed and doesn’t matter. (Of course, when a justice resigns, as David H. Souter has done, his or her legacy is routinely toted up in ideological terms.)


Over four decades, the ideology taboo has forced all the players in the game into various rhetorical contortions. The side that wins tends to wage an ideological battle without being perceived as ideological. So far, Obama seems to be way ahead.

One reliable way for presidents to get picks confirmed has been to choose candidates from groups that have suffered discrimination. Following the sea change wrought by the civil rights and feminist movements, senators don’t like to attack outright black, female or -- now -- Latino nominees, lest they seem bigoted.

The first female justices, Sandra Day O’Connor and Ruth Bader Ginsburg, escaped the viciousness that has marked so many post-1960s confirmation battles, thanks in part to lofty (and deserved) talk about the historic nature of their appointments. President George W. Bush had, similarly, stymied Democrats with his 2005 nomination of White House Counsel Harriet E. Miers -- until he (and she) ran into an intraparty revolt, as conservatives refused to accept Miers without a paper trail attesting to her right-wing bona fides.

The dicey politics of race also helped to ensure Clarence Thomas’ nomination. Although most liberal senators, determined not to let Thurgood Marshall’s seat on the court fall into conservative hands, voted against Thomas, a significant number chose not to defy those civil rights leaders who supported President George H.W. Bush’s nominee. Eleven Democrats, including seven Southerners dependent on black votes for their reelection, joined with 41 Republicans to give Thomas a majority.

In much the same way, ethnicity consumed hours of strategizing when President Nixon was filling court vacancies. On tape, Nixon voiced hope that one possible nominee might have “a little Italian blood” -- the better to bring along Democrats. He also jokingly urged his attorney general, John Mitchell, to persuade another candidate, William French Smith, to convert to Catholicism. (After Mitchell agreed to “get him baptized,” according to the tapes, Nixon elaborated: “Well, baptized and castrated, no, they don’t do that, I mean they circumcise -- no, that’s the Jews. Well anyway, however he is, get him changed.”)

Besides identity politics, brandishing a sterling resume also has succeeded in neutralizing attacks. Liberals who worried about Antonin Scalia’s conservatism when President Reagan nominated him in 1986 feared they would look coarsely partisan if they torpedoed such a well-credentialed judge. George W. Bush followed Reagan’s strategy in appointing John G. Roberts Jr. and Samuel A. Alito Jr., clearly conservative jurists whose news clippings teemed with so many superlatives that resistance came to seem futile.

Conversely, a favorite strategy for wounding nominees has been to sling the charge of mediocrity. In 1967, Southern senators preposterously alleged that Thurgood Marshall was unfit for the bench. They quizzed him on arcana about the 14th Amendment, on which he was supposedly expert, and when he missed certain questions, they smugly deemed him unqualified.

A few years later, liberals targeted G. Harrold Carswell, a Nixon nominee, on grounds that he was “mediocre” -- producing Nebraska Sen. Roman Hruska’s classic “so what?” defense: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?” When conservatives sank Miers, they likewise used the mediocrity charge.

Besides impugning a nominee’s qualifications, detractors also have resorted to playing up -- and often inventing -- scandals that would move the discussion from the realm of merit into that of ethics. It worked well in 1968, when conservatives filibustered Abe Fortas, President Lyndon Johnson’s nominee for chief justice, partly on grounds that he accepted an honorarium to lead a seminar. Alleged “gotchas” have included charges of financial conflicts of interest, belonging to segregated clubs, owning a house with a restrictive covenant and, of course, engaging in sexual harassment. Sometimes these charges scuttled nominations, sometimes they merely tarred nominees, but they’ve often made the hearings an ugly spectacle.

Some commentators -- not only conservatives -- have already expressed doubts about Sotomayor’s intellectual chops. But in the run-up to Obama’s announcement Tuesday, those criticisms seemed aimed at promoting other, manifestly brilliant short-list nominees, such as Solicitor General Elena Kagan or Kathleen Sullivan of Stanford Law School, not at suggesting Sotomayor fell short of a minimal threshold. Nonetheless, we may hear more about her being unfit.

As for scandal, who knows? The feeding frenzy is just beginning. You’d think that the Obama administration has fully vetted its nominee -- she already has been confirmed by the Senate, after all, for her current appellate court seat -- but then again, this White House’s vetting record hasn’t exactly been a model of thoroughness.

The last card available to Sotomayor’s critics would be the one Democrats used against Robert Bork in 1987: labeling her an extremist. It comes the closest to introducing ideology into the debate -- asserting, in effect, that although a nominee within the “mainstream” shouldn’t be scuttled, a zealot demands opposition. With Bork, critics depicted his views as fundamentally alien and decried his temperament and even his sanity, rather than his mere opinions. (“The beard doesn’t help him,” said one supporter.)

Conservatives may try to imply that Obama’s comments about seeking a nominee with “empathy” and “life experience,” along with a couple of Sotomayor remarks, mean that she intends to toss aside the law for her gut sympathies. But her record -- at least as it’s been reported so far -- doesn’t easily lend itself to such interpretation.

New York’s Sen. Charles E. Schumer, a member of the Senate Judiciary Committee and a Democratic street fighter, could be heard Tuesday morning setting out the battle lines: “They don’t have much to argue against,” he told MSNBC: She was near the “top of her class”; “she’s a moderate”; “she has a great story, and of course, diversity.”

If he’s right, credit Obama and his team as much as Sotomayor herself: They found the right formula to run the contemporary gantlet. With barely a word said about ideology.