As the U.S. Senate begins confirmation hearings on Monday in considering Solicitor General Elena Kagan to the nation’s highest court, many complain that ever since the contentious hearings of Robert Bork in 1987, nominees to the Court are so well coached and have such a thin paper trial, the Senate and the public are being increasingly denied critical insight on how these potential justices will rule on important issues in the coming decades, such as on First Amendment Rights, involving obscenity, consciousness objectors and security risks, along with a whole host of privacy issues, from the right to die to abortion.
If recent news reports are any guide, Kagan’s toughest questions will center on her decision to ban military recruiting at Harvard University because the University considered the White House’s ban on gays serving in the military to be a ``profound wrong and moral injustice of the first order.’’
And while the New York native received a ``well qualified’’ rating from the American Bar Association, Republicans are expected to focus on Kagan having never served as judge on the federal or state level.
So if it’s fireworks you’re expecting at the confirmation hearings, just a week before the Fourth of July, you might be disappointed. As Jonathan L. Entin Professor of Law and Political Science at Case Western Reserve University tells me, ``call me a cynic, but I doubt that we'll learn much useful information from the hearings or from the floor debate.’’
But then again, Committee members might sharpen their line of attack after they read a law journal article Kagan wrote for the University of Chicago Law Review in 1995 (``Confirmation Messes, Old and New,") in which Kagan pointed out that President Clinton’s Supreme Court nominees received disappointing soft examinations from the Senate Judiciary Committee. Kagan wrote: ``Clinton's nominees, then Judges Ruth Bader Ginsburg and Stephen Breyer confronted no unfair or nasty opposition; to the contrary their confirmation hearing became official lovefests. More important, both nominees felt free to decline to disclose their views on controversial issues and cases. They stonewalled the Judiciary Committee to great effect, as senators greeted their ``nonanswer answer with equanimity and resigned good humor. If recent hearings lacked acrimony, they also lacked seriousness and substance.’’
So the coming days ahead will show if Kagan’s confirmation hearing will be just another lovefest or brimming with seriousness and substance as she expounds on her views on controversial issues and cases.
In the meantime, in anticipation of the confirmation hearing this week, I put together some historical briefs and footnotes on other U.S. Supreme Court Justices and confirmation hearings.
• The only reference to the appointment of Justices in the U.S. Constitution is found in Article II, Sec. 2, Cl. 1, which states that the President “shall nominate, and by and with the consent of the Senate, shall appoint ... Judges of the Supreme Court.”
• There is no constitutional requirement a Supreme Court Justice must have law degree.
• For the first 75 years of the nation, law schools didn’t exist. Some of the more privileged Justices, therefore, traveled to England to study at one of the four Inns of Court, which, from the 14th century to the middle of the 19th century, provided legal training to laypersons and admitted them to the bar. A vast majority of the Justices, rather, trained through an apprenticeship, during which they “read the law.” In this apprenticeship, an aspiring attorney would be trained by a practicing attorney., while other lawyers were self-taught.
• The first law school graduate to serve on the U.S. Supreme Court was Benjamin R. Curtis in 1857. Not until 1957 were all members of the Supreme Court comprised of law school graduates. The last Justice to serve without a law degree was Stanley F. Reed (1957). The last Justice to serve without even had attended law school was James F. Byrnes (1941-42).
• The reopening of Harvard Law School in 1829 is considered the beginning of legal education in the United States. Since 1909, a majority of justices received their legal education at Harvard,
Yale or Columbia. On the current court, Justice John Paul Stevens, who received his law degree from Northwestern University in 1947, is the only sitting Justice who did not graduate from Harvard, Yale, or Columbia.
• If Solicitor General Elena Kagan is confirmed, five members of the Court would claim Harvard as their law school alma mater.
• On July 6, 1835, John Marshall died after 34 ½ years on the bench, administering the oath of office nine times to five U.S. presidents, more than any other in history.
• Of the 159 nominations that have been made to the Supreme Court over the course of more than two centuries, 36 were not confirmed by the Senate. Of the 36 not confirmed, 11 were rejected by the Senate (all in roll-call votes), 11 were withdrawn by the President, and 14 lapsed at the end of
a session of Congress without a Senate vote cast on whether to confirm.
• Only two nominees-George Williams in 1873 and G. Harrold Carswell in 1970 were defeated due to ``mediocre judicial records and lack of professional qualifications.’’
• Samuel Chase and William Douglas were the only two Supreme Court Justices threatened with impeachment. Chase was acquitted, while two impeachment resolutions failed to pass in the House against Douglas.
• Of the 22 nominees to the Court from 1900 to 1937, only three had Judiciary Committee hearings.(Louis D. Brandeis in 1916, Harlan F. Stone in 1925, and John J. Parker in 1930 (whose nomination was eventually rejected) of the 41 nominees after 1937, only three did not have hearings. Nominees did not begin regularly testifying at their own hearings until John M. Harlan did so in 1955.
• Public confirmation hearings for Supreme Court nominations did not become a regular practice of the Judiciary Committee until the late 1930s
• In 1930, less than a half dozen reporters covered the U.S. Supreme Court on a regular basis.
• William Howard Taft is the only person to have served both as president (1909-13) and as Chief Justice of the U.S. Supreme Court (1921-30).
• Ray Sprigle, a reporter for the Pittsburgh Post-Gazette published a six day series of articles chronicling Hugo L. Black’s KKK membership from Sept, 1923 to July, 1925. Black was confirmed anyway by the committee by a vote of 34: 14 and by the Senate: 63:16.
• February 6, 1937: The New York Times begins the first of 50 editorials ("Remaking The Judiciary") attacking President Franklin Roosevelt on his court-packing scheme.
• All five Court vacancies occurring between 1946 and 1954 were due to death of a sitting Justice. Since 1954, however, retirement has been the most common way in which Justices have left the bench (19 of 23 vacancies occurring after 1954 resulted from retirements). Of the 23 vacancies since 1954, though, no Justice had died while still on the Court until Chief Justice Rehnquist in 2005.
• Between 1900 and 2009, three Justices resigned to pursue other formal public service. In 1916, Justice Charles Evans Hughes resigned to pursue the Republican nomination for President. Justice James F. Byrnes resigned on October 3, 1942, becoming Director of Economic Stability for President Franklin D. Roosevelt; and Justice Arthur Goldberg resigned in 1965 to become the U.N. Ambassador to the United Nations.
• Justice Abe Fortas resigned in 1969 during a storm of controversy after it was reported he took on some consulting work while on the bench.
• On 12 occasions in our nation’s history (most of them in the 19th century), Presidents, exercising their power under the Constitution to make “recess appointments” (when the Senate was not in session), have made temporary appointments to the Supreme Court without submitting nominations to the Senate. President Dwight D. Eisenhower was the last U.S. president to make a recess appointment. Of the five persons whom he nominated to the Court, three first received recess appointments and served as Justices before being confirmed—Earl Warren (as Chief Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958
NOTE: The U.S. Senate in 1960 passed a resolution prohibiting the president from making recess appointments to the U.S. Supreme Court.
• Since 1900, three sitting Senators—Hugo L. Black of Alabama (1937), James F. Byrnes of South Carolina (1941), and Harold H. Burton of Ohio (1945)—have been nominated to the Court, and all were quickly confirmed.
• Senators George Sutherland of Utah (1922) and Sherman Minton of Indiana (1949) were nominated to the Court after having concluded their Senate service.
• The court began recording oral arguments in 1955.
• ``Project Hermes’’ was introduced in 1990 that made Supreme Court opinions immediately available through a variety of computer programs, namely, Lexis, Westlaw, CompuServe, and the Government Printing Office.
• Yale Law Professor Robert Bork was on President Gerald R. Ford’s short list of U.S. Supreme Court nominees before nominating John Paul Stevens.
• When President Clinton had to fill a vacancy after the retirement of Justice Byron R. White on March 31, 1993 after 31 years on the high bench; Clinton’s first choice was Mario Cuomo, the governor of New York, who turned him down. Clinton settled on Ruth Bader Ginsburg.
• Solicitor General Kagan has never served as a judge at the federal or state level.
• Through history, 71 (64.0%) Justices came to the Supreme Court with prior judicial experience in a lower federal or state court.
• Solicitor General Kagan would also be the first Justice appointed without judicial experience since the 1971 appointment of William Rehnquist and the first to have served as the Solicitor General since the elevation of Justice Thurgood Marshall in 1967.
• Associate Justice Sandra Day O’Connor’s July 2005 retirement announcement marked the first pending Court vacancy since 1994.
• The first 50 years of the Court, all Justices were affiliated with Protestant Christian churches. In 2010. for the first time in the Court’s history, not one Justice would claim an affiliation with a Protestant Christian Denomination.
• The first Catholic Justice, Chief Justice Roger Brooke Taney, was appointed in 1836; the first Jewish Justice, Louis Brandeis, was appointed in 1916.
• When Samuel Alito, a Roman Catholic, joined the Court in 2006 to replace Justice Sandra Day O’Connor, an Episcopalian, a majority of the Court’s membership was Roman Catholic for the first time in the nation’s history. This Roman Catholic majority grew from five to six justices with the confirmation of Justice Sotomayor.
• Kagan’s appointment will mark the first time that three Jewish Justices have shared the bench. Ruth Bader Ginsburg and Stephen G. Breyer, who serve on the Court, are also Jewish.
• In the past 20 years, especially, three Ivy League law schools—Harvard, Yale, and Columbia—have been disproportionately represented on the Court. Of the nine sitting Justices, eight have attended one of these three law schools, including recently confirmed Justice Sotomayor, who is a graduate of Yale Law School.
-Bill Lucey
[email protected]
Source: Congressional Research Service; ``Justices, Presidents and Senators: A History of U.S. Supreme Court Appointments from Washington to Clinton’’ By Henry J. Abraham; ``Storm Center: The Supreme Court in American Politics’’ By David M. O’Brien.
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Glossary of Select U.S. Supreme Court Terms
Amicus curiae: ``A friend of the court’’; a person not party to litigation, who volunteers or is invited by the court to give his views on a case.
De jure: As a result of the law; as a result of official action.
Exclusionary Rule: An evidentiary rule requiring that evidence obtained in violation of an individual’s constitution rights under the Fourth Amendment must be excluded at trail.
Ex parte: From, or on, only one side. Application to a court for some ruling or action on behalf of only one party.
Stare decisis-Let the prior decision stand.
Writ of Certification: A method of taking a case from the appellate court to the U.S. Supreme Court in which the lower court ask that some question or interpretation of law be certified, clarified, , and made more certain.
Writ of Mandamus: ``We command’’ an order issued from a superior court directing a lower court or other government authority to perform a particular act.
Per curiam: ``By the court; an unsigned opinion of the court
Subpoena duces tecum: An order to produce specified documents or papers.
Writ: An order commanding someone to perform or not perform acts specified in court.
Source: ``Storm Center: The Supreme Court in American Politics By David M. O’Brien
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Web sites to keep in mind:
U.S. Supreme Court Opinions (from Find Law )
U.S. Supreme Court Cases: 1792-(The Oyez Project)
Biographical snapshots of Justices by Court, dating back to 1795. (The Oyez Project)
Solicitor General of the United States
Federal Judicial Center Database
Members of the U.S. Supreme Court
C-Span Video Archive of Elena Kagan
The Scotus Blog (Supreme Court of the United States Blog)
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