David Greenberg: The ritual of choosing a justice has a long history of fictions and evasions





[David Greenberg, a professor of history and media studies at Rutgers University, is the author of “Nixon’s Shadow: The History of an Image.” He is currently writing a history of political spin.]

For decades now, the Supreme Court has been sharply and closely divided. On almost every major issue—including the selection of a recent president—liberal and conservative justices have split 5-4 or 6-3. As a consequence, for more than a generation, virtually every new appointment—not least that of Judge Sonia Sotomayor, already nearly a fait accompli—has galvanized partisans and commanded the rapt attention of the news media and much of the public.

Oddly, though, the Sotomayor hearings have proved newsworthy mainly for their lack of newsworthiness. Nothing of note has happened; little of interest has been spoken. What’s more, everyone is united in lamenting the numbing predictability. The punditry about the hearings has been as banal and repetitive as the hearings themselves.

This Supreme Court confirmation kabuki dance isn’t new, either. Like the intensity of interest in court appointments, the descent into unrevealing routine and relentless message control dates to the 1960s—in fact, the importance of these decisions may be largely responsible for the hearings’ hyperscripted nature. All that’s really new about the spin and scripting is that it gets a notch or two more intense with each successive appointment—so we now have, for example, “sherpas” chosen to guide the eventual nominee through the Senate; mock hearings beforehand, replete with White House aides playing the part of opposition-party senators; and, this time around, a president who began considering high court candidates even before he took office.

The first high court nominee to appear before the Senate Judiciary Committee was President Calvin Coolidge’s well-regarded attorney general, Harlan Fiske Stone, whom Coolidge nominated for the bench. As Attorney General, Stone had continued a politically motivated investigation, begun by his predecessor, of Montana Sen. Burton Wheeler; the vindictive Wheeler, accordingly, sought to block Stone’s appointment, and so the nominee asked to defend himself. The tactic worked, as Stone acquitted himself ably on Capitol Hill and won confirmation handily.

Not until the postwar era, however, did the direct questioning of the nominees become institutionalized; and not until the late 1960s, when conservatives began attacking the activist jurisprudence of the court under Chief Justice Earl Warren, did the sessions assume the contentious character that has marked them ever since....


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