The looming Supreme Court confirmation battle presents itself as a hinge-point moment for the nation, potentially tipping the direction of rulings toward conservative outcomes for decades.
Yet, if the recent past is political prologue, the least dramatic moment of the process will be the chapter that is supposed to be the most illuminating: the confirmation hearings.
At least that is how President Trump’s advisers will draw up their game plan, following a path blazed by their predecessors in the administrations of Barack Obama and George W. Bush.
The modern Supreme Court nominee has learned the lessons of Robert H. Bork, nominated 31 years ago Sunday under similar circumstances as today’s vacancy caused by the pending retirement of Justice Anthony M. Kennedy.
Back then President Ronald Reagan nominated Bork, then a judge on the U.S. Circuit Court of Appeals for the D.C. Circuit, to replace Lewis F. Powell Jr., the Supreme Court’s most important swing vote. Bork was flamboyant in his writing as a Yale Law School professor, before joining the Nixon-era Justice Department and getting the judicial appointment.
At the 1987 confirmation hearings, Bork openly clashed with the committee chairman, then-Sen. Joe Biden (D-Del.), particularly on the 1965 case that allowed couples to use contraception.
“As I hear you, you do not believe there is a general right of privacy,” the future vice president told Bork.
“Not one derived in that fashion,” Bork replied.
It didn’t much matter that the nominee tried to explain that he had no objection to contraception, just the way the Warren-era Supreme Court decided the case. Bork got turned into an out-of-touch jurist who opposed the most basic levels of intimate privacy and ultimately got rejected in a large, bipartisan vote of opposition, 42 to 58.
Instead, Reagan eventually nominated Kennedy to fill that seat. It was a historic ideological shift, given Kennedy’s subsequent 30-year run providing the swing vote in support of social liberal positions on abortion and gay rights, while also providing the critical fifth vote for business-friendly ruling’s such as last week’s decision that reined in labor unions’ power to collect dues.
The next generation of confirmation advisers learned to coach nominees to avoid the land mines that Bork had encountered.
“These days, the nominees are smart enough to know that they only need to answer as much as necessary to get through the hearing,” said Jamie Brown Hantman, who worked in the Bush White House and served on the “sherpa” team that ushered Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. through their confirmations.
Ronald Weich, dean of the University of Baltimore School of Law, worked the opposing side of those 2005 and 2006 nominations as counsel for Senate Democrats, before moving on to the Justice Department in 2009 and working on the nominations of Justices Sonia Sotomayor and Elena Kagan.
“They’ve watched the prior hearings like Major League Baseball hitters watching tapes of the pitcher they’ll face the next day,” said Weich, who also served as counsel to Sen. Edward M. Kennedy (D-Mass.) during four nomination hearings in the 1990s.
Weich said that advisers to nominees developed what he called the “80-20 rule” — hoping that senators would take up 80 percent of the hearings with long-winded questions, while the nominees would occupy 20 percent with sharp, crisp responses.
Take the two most recent Supreme Court confirmation hearings, in 2010 and 2017, involving justices nominated by a Democratic president and a Republican president, and note how the nominees handled heated questions from the ranking minority party member.
“Well, Senator Sessions, I’m not quite sure how I would characterize my politics. But one thing I do know is that my politics would be, must be, have to be completely separate from my judging,” Kagan told Jeff Sessions (Ala.), then the top Republican on the Senate Judiciary Committee. “I agree with you to the extent that you’re saying, look, judging is about considering a case that comes before you.”
Then came this exchange last year between Sen. Dianne Feinstein (D-Calif.) and now-Justice Neil M. Gorsuch, with Gorsuch deflecting her queries on which way he would rule.
“All I can do is — I can’t promise you how I’d rule in a particular case. That would be deeply wrong, to sit here at a confirmation table. And I think we agree on that. That it would be a violation of the independent judiciary,” Gorsuch told Feinstein.
Heightened partisanship has also limited the expectation of winning 90 votes — or even unanimous support, as Anthony Kennedy received in 1988. Kagan got 63 votes, with just five Republicans supporting her.
Last April, Gorsuch won 55 votes, with just three Democrats supporting him, and that was after Senate Republicans changed the rules, unilaterally, to eliminate the 60-vote hurdle to clear a filibuster on Supreme Court nominations.
So Trump’s nominee enters this confirmation fight knowing that the objective is to target those few potential swing Republicans, particularly Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), in much the way that litigators appearing before the Supreme Court would target their pitches to Kennedy as the key swing vote.
“Without a phenomenal screw-up, you can expect that every Republican will vote for the Republican nominee and most of the Democrats will likely vote against. So there isn’t much suspense,” Brown Hantman said.
Within hours of Bork’s nomination, Sen. Kennedy delivered a blistering three-minute speech — based largely on Bork’s writings at Yale — that shaped the terms of the debate ahead. “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” he said.
So today’s nominees have often prepared for this moment their entire adult lives, knowing that if they stray too far in their writings, as Bork did, their hearings will be much more troubling. Kagan, a past dean of Harvard Law, did not leave much of a paper trail to pick apart and, because Republicans had blocked her nomination to the federal bench in 1999, she had no judicial opinions to read.
After her nomination, Sessions did not sound anything like Kennedy on Bork, complaining about how little he knew about her judicial philosophy. “With no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics,” he said.
That’s exactly the sort of complaint Trump officials hope to hear when they roll out the nominee.