The Modern Senate Confirmation Process -- Part I
By Horace Cooper
August 1, 2005
Editor's Note: This is Part I of a three part series.
Paradise Lost: Political Commitments Sought
The year was 1967 and the nominee to the United States Supreme Court was Thurgood Marshall, a distinguished liberal and former US Appeals Court Judge. Texan Tom Clark, a Truman appointee had resigned after serving nearly 18 years on the Supreme Court. Within a day of Justice Clark's retirement, President Johnson announced that Marshall was his pick.
A descendant of slaves, Marshall had graduated from all-black Lincoln University in Pennsylvania in 1930, then received a law degree from Howard University and was an acclaimed litigator including having led the civil rights case of Brown v. Board of Education of Topeka to a successful hearing before the Supreme Court of the United States.
Additionally, President Kennedy had named Marshall to the U.S. Court of Appeals (Second Circuit) in 1961, and subsequently President Johnson appointed him to be the U.S. Solicitor General in 1965.
But unlike the unanimous Senate confirmations of Abe Fortas, Arthur Goldberg, and Byron White -- three immediate prior Associate Justices on the Supreme Court -- Marshall would not be so fortunate. Even with President Johnson's party holding a staggering two-thirds super-majority in the United States Senate, nearly 80 days would pass before Marshall was finally given a floor vote.
And perhaps worse still, a core group of Senate Democrats (many of whom were still sore over their failure to prevent Marshall's earlier confirmation to the Court of Appeals) would set new lows with their obstructionist tactics. In fact, their actions would significantly create and shape what would become the modern Senate confirmation process. In order to mask their racial motivations, these senators purportedly rejected the longstanding view that nominees should be evaluated primarily based on their legal skills and judicial temperament and instead openly embarked on a strategy to solicit political commitments from the prospective nominee about cases which would come before him.
Among the explosive issues that would come up during his confirmation hearings: whether Marshall would repudiate the Miranda v. Arizona ruling which the court had narrowly adopted on a 5-4 vote. Even though as Solicitor General Marshall had weighed in against the creation of the so called Miranda rights (which imposed the now ubiquitous requirements that the police must inform suspects of their rights when taking them into custody) Marshall was now expected to promise to vote to overturn rulings once confirmed if he was to convince these senators of his fitness to join the Supreme Court.
Senator Robert Byrd of West Virginia and Senator Sam Ervin of North Carolina attempted to hide their bigotry against Marshall by trying to show that Marshall would ignore or was ignorant of the meaning of the fourteenth and fifteenth amendments. Even the chairman of the committee, John Eastland, joined in the muckraking going so far as to imply that Marshall had "communist" sympathies. Other senators attempted to get Marshall to commit that if confirmed he would never overturn a death penalty sentence.
Despite dogged persistence by his Senate critics, Marshall refused to stray beyond his view that this line of questions limited his independence saying, "My difficulty," said Thurgood Marshall, "is that, from all of the hearings I have ever read about, it has been considered and recognized as improper for a nominee to a judgeship to comment on cases that he will have to pass on."
When asked to comment on public comments that he had made as Solicitor General at a law school in Texas, Thurgood Marshall rebuffed his Senate critics claiming "That view was as the Solicitor General of the United States talking to law students trying to give them the benefit of my advice, not as a nominee for this position."
Ironically, he was aided by the then junior Senator from Massachusetts Ted Kennedy who interjected "Actually Mr. Solicitor General, there would have been nothing improper for you to express an opinion down in a Texas law school because you were not nominated to the Supreme Court at that time. So actually now, having received the nomination, then I assume that you have a different responsibility as far as commenting on these matters." Resolutely Marshall refused to allow himself to be pulled across the line in the process setting a precedent that most nominees adhere to even to this day.
Were it not for a crucial push by Senate Republicans as a bloc on behalf of Marshall the Southern segregationists might have prevailed. Ultimately Thurgood Marshall was confirmed by a large margin (sixty-three to eleven), with all of the opposition coming from the segregationist Democrats. But the seeds of destruction that make up the modern Senate confirmation process had been firmly planted and once they germinated future nominees would find the landscape significantly changed.
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Horace Cooper is a constitutional law professor at George Mason University
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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.