Friday, July 17, 2009

Sotomayor Confirmation Hearings (cont'd)

Robert Bork gained recognition as a major constitutional law scholar, when he taught at Yale Law School in the 1960s and '70s. He was increasingly mentioned as a prime prospect for a Supreme Court appointment by a Republican president.

When Ronald Reagan appointed Bork to the Court of Appeals for the District of Columbia, in 1982, many assumed that Reagan was making Bork the on-deck batter for a future Supreme Court vacancy.

Associate Justice Lewis Powell retired in 1987, and Reagan appointed Bork to replace him.

It was clear that Bork was in for a fight. The Democrats had reclaimed control of the Senate in the 1986 mid-term elections. Bork's judicial philosophy of interpreting the Constitution according to the original intent of the framers, rather than by evolving judicial interpretation, runs counter to the basis for many decisions of the Warren and Burger courts. Exhibit A is the Roe v. Wade abortion decision, which Powell supported. Most Democrats, and some Republicans, wanted to preserve Roe.

Associate Justice Antonin Scalia, whose judicial philosophy is similar to Bork's, was easily confirmed in 1986. Republicans still controlled the Senate that year, but both parties unanimously supported him. What was different in Bork's case?

For one thing, I suspect that, as Reagan made more Supreme Court appointments (he would end up appointing three associate justices, and promoting William Rehnquist to chief justice) the pro-choice side became more fearful about the future of Roe. Even though Reagan's first appointee, Sandra Day O'Connor, later voted to uphold Roe, they had reason to expect that the fiercely pro-life Reagan would try to sway the Court his way.

But, aside from such substantive issues, much has been said about the way Bork presented himself at his Senate hearings. He and the Reagan White House were seemingly unprepared for the media event that confirmation hearings had become. The hearings were televised, and Bork did not make a favorable impression via that medium.

Edward Lazarus writes of Bork that:

On television, he came across as smug and contemptuous - in a word, injudicious - though in real life, he could be quite charming. As things turned sour for him, he simply could not muster the kind of charisma and humor that might have disarmed his opponents, rallied public support, and seen him through the rough patches.

Some even said that Bork's unconventional beard made him appear sinister.

Whatever the causes, Bork's nomination was rejected by the Senate, by a vote of 42 to 58. Anthony Kennedy was eventually confirmed as Powell's successor.

Fast forward to 2009, and there has been much talk about Sonia Sotomayor being unusually reserved in her exchanges with the senators on the Judiciary Committee. In this New York Times report, Sheryl Gay Stolberg wonders where the judge's passion disappeared to.

Judges nominated by presidents of both parties are now much more careful about the impression they make on the TV audience. In a lesson similar to one that had previously been learned by principals in the political branches of government, potential Supreme Court justices have come to realize that their acting skills have become just about as important as their legal experience.

In that Times piece, Stolberg makes an interesting comparison between Sotomayor and Chief Justice John Roberts:

Chief Justice John G. Roberts Jr. arrived at his confirmation hearings four years ago with a reputation as brainy but detached, and had to demonstrate his humanity. Judge Sotomayor arrived at Tuesday’s proceedings with the opposite problem: a reputation for too much feeling. Her task was to demonstrate restraint.

To summarize the point concisely: nominees don't want to get borked. Bork has the dubious distinction of joining the likes of Charles Boycott and Elbridge Gerry, as people whose proper names have been turned into common nouns.

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