Even before he selected Appellate Court Judge John G. Roberts for the Supreme Court President Bush argued that any person he nominated would deserve "a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote." To many Republicans that meant that the nominee's ideology should not be put on trial. If the nominee was qualified he or she should be confirmed. After Judge Roberts was selected Republicans argued that he was possibly one of the most qualified candidates for the bench that had ever been put forward. The obvious conclusion was that he should perforce be approved by the Senate forthwith.
What has been the standard used in the past to measure nominees to the Supreme Court of the United States?
The Bork Legacy
In 1987 President Ronald Reagan nominated Robert Bork to the Supreme Court. After tumultuous hearings, which marked a turning point in the history of judicial nominations, Bork was turned down by the Senate. Since the founding of the Republic the Senate has rejected just a dozen nominees to the Court. But Bork's rejection came after a highly charged battle over his ideology. This was unprecedented. The fireworks over his ideology began immediately. Within an hour of his selection, Senator Edward M. Kennedy (D-Mass.) took to the Senate floor to denounce Judge Bork's views on civil rights and abortion and argued, "No nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him." As Leonard Gross and Norman Vieira, co-authors of Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations, have noted, "The Bork proceedings clearly established a firm precedent for ideological inquiries and for the rejection of judicial nominees, at least in some instances, on purely ideological grounds." One of the consequences was that presidents afterward would be tempted to nominate individuals who had not left a long paper trail of opinions. Bork had and he had been reproved and rejected.
Ruth Bader Ginsburg
After Justice Byron White announced his retirement on March 19, 1993, President Bill Clinton decided to nominate Ruth Bader Ginsburg as the second woman justice of the Supreme Court. When her nomination went to the Senate for confirmation Sen. William Cohen (R-Maine) stated bluntly that the nominee's ideology was rightly a matter of concern. But Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee's philosophy is "so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament." Sen. Arlen Specter (R-Pa.) was not pleased with the advance praise of Ginsburg by many senators and argued that "a coronation in advance is not in the best interest of the system."
Although Ginsburg's confirmation seemed almost assured the Senate did consider her positions on liberal issues. When asked about her position on abortion Ginsburg was forthright, becoming the first nominee to expressly confirm that she believed in a woman's right to abortion. Despite her frank admission, few Republicans took the position that her embrace of abortion rulings disqualified her from a seat on the Court. But Sen. Orrin Hatch (R-Utah) and others became exasperated when she declined to answer Senator Specter's question about her position on the death penalty. They also expressed frustration when she declined to answer questions about gay rights. When Sen. Cohen pressed her for an answer, she responded, "Senator, you know that that is a burning question that at this very moment is going to be before the Court, based on an action that has been taken. I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews."
Republicans did not find Ginsburg to be a controversial nominee and on Thursday, July 29, 1993, the Judiciary Committee voted unanimously in favor of her confirmation, a mere six days after the hearings concluded. The Senate then approved Ginsburg's nomination by a vote of 96 to 3. The three dissenters were Conservative Republicans Jesse Helms (R-North Carolina), Don Nichols (R- Oklahoma), and Robert C. Smith (R-New Hampshire). Sen. Helms said he voted against her because of her position on abortion and the "homosexual agenda."
President Clinton was able to fill a second seat in the Supreme Court when Justice Harry Blackmun announced his retirement in April 1994. Clinton chose another nominee who would elicit little or no opposition when on May 12, 1993 he announced his selection of Chief Judge Stephen Breyer of the court of appeals in Boston. Breyer was a judicial moderate. As Leonard Gross and Norman Vieira observed, "Breyer was perceived as a candidate without an ideological agenda. Some of his opinions were sure to please liberals, while other opinions would give comfort to conservatives." The New York Times reported that "in this new low-key era, don't expect even the conservative Republicans on the panel to raise any serious objections." (NYT, July 8, 1994) Breyer, formerly chief counsel for the judicial committee, had strong support in both parties. Republican senators like Sen. Hatch wanted Clinton to nominate Breyer. Prior to the hearings Senators Hatch and Strom Thurmond (R-South Carolina) both assured Breyer they would support his confirmation, an indication that Breyer was ideologically compatible to Republicans.
Although Senators Hatch and Thurmond supported Breyer; they and Sen. Alan Simpson (R-Wyoming) were concerned about Breyer's ideological position on freedom of religion, an important conservative issue. They were disconcerted his admission that he believed in a wall of separation between church and state. They felt that his position was rigid. As a judge Breyer had ruled that a school district's officials had the right to visit a religious grade school to evaluate the quality of its teaching; Republicans deemed this a violation of religious freedom. Breyer defended his action by claiming he was more sensitive to the issue then the Supreme Court had been in similar rulings. Breyer also claimed, according to the NYT, that "the great religious wars of three centuries ago were fought over the right of people to pass on their beliefs to their children. It was therefore not surprising, he said, that controversy over the issue increased when it involved schools." (NYT, July 14, 1994) The senators were also concerned about his position on home schooling; Breyer responded that he approached the issued without a bias one way or the other.
Breyer's largest hurdle came when Newsday broke a story indicating that he had investments in some of Lloyd's of London's insurance syndicates. Senators argued that his investments would create conflicts of interest if Breyer would be presented with "Superfund" cases that could affect Lloyd's potential liability. In the hearings Breyer promised to sell off his investments in Lloyds, and to make all of his investments public. However, as the confirmation process was winding down Newsday further exposed Breyer as having been on a three-judge panel in a pollution case where the Kayser-Roth Corporation was sued by Lloyd's of London after being held accountable for cleaning up the site of a chemical spill. The case demonstrated that he had failed to recognize that he had a conflict of interest. (Lloyd's was directly involved in the case, but it was uncertain if his syndicates were.)
Despite concerns about the Lloyd's case, the eighteen member Judiciary Committee unanimously voted to approve Breyer's nomination. Ten days later, on July 29, 1993, after less than six hours of debate, Breyer easily won Senate confirmation by a vote of 87 to 9. The Boston Globe reported, "Conservatives and liberals alike rose to praise his abilities as a judge, with Kennedy and Republican Sen. Orrin Hatch of Utah leading the way." (Boston Globe, July 30, 1994) The nine dissenting senators (all Republicans) included: Conrad Burns (R-Montana), Daniel R. Coates (R-Indiana), Paul Coverdell (R-Georgia), Jesse Helms, Trent Lott (R-Mississippi), Frank H. Murkowski (R-Alaska), Don Nickles (R-Oklahoma), and Robert C. Smith. They indicated they were primarily concerned with Breyer's ethics, but also objected to his support of federal funding for abortion counseling, his lack of commitment to private property rights, and his opposition to prayer in public schools and at public schools' graduation ceremonies.
Sen. Smith told the Union Leader that he opposed Breyer because "He will move the court away from the conservative justices' (William Rehnquist, Antonin Scalia, Clarence Thomas) way of the court, which most people in New Hampshire essentially support on most of the issues." Although he still voted for him, Sen. John McCain (R-Arizona) "chastised Breyer for his role in promoting a federal courthouse on Boston's waterfront that he called 'an exercise in extravagance and arrogance.' " (Boston Globe, July 30, 1994)
In the end, despite their reservations, most Republican senators approved of Breyer's nomination because, as Sen. Richard Lugar (R-Indiana) put it, they "take the view that Breyer is the best justice - ideologically speaking - they can expect President Clinton to nominate." (Christian Science Monitor, July 27, 1994)