E375 -

Ilya Shapiro joins the show to take us through the history of Supreme Court nominations.

Hosts
Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies
Guests

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Shownotes:

Ilya Shapiro joins the show to take us through the various eras of the Supreme Court. He also explains how the process of nominating someone to the Supreme Court has changed since the founding.

What does the Constitution say about the Supreme Court? Did Marbury v. Madison in 1803 and the rise of judicial review change some of the calculus for confirmation hearings? What is judicial review?

Further Reading:

Transcript

[music]

0:00:07.3 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

0:00:09.3 Aaron Powell: And I’m Aaron Powell.

0:00:10.6 Trevor Burrus: Joining us today is Ilya Shapiro, Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review. His new book is Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Welcome to Free Thoughts, Ilya. Finally get you on.

0:00:26.9 Ilya Shapiro: Yeah, it’s good to be on. And you had to perfect the proof of concept sufficiently for me to grace your airways.

0:00:36.0 Trevor Burrus: Yeah, it took 365 episodes or something. So it all worked out, but good to have you on. So let’s start by just talking about the rules of the game. What does the Constitution say about judicial appointments and confirmations, and what role are the various branches supposed to play?

0:00:54.8 Ilya Shapiro: Article 3 says that there shall be a Supreme Court and such lower courts as Congress may create, and it also says that the President shall nominate, and with the advice and consent of the Senate, shall appoint judges to the Supreme Court. And that is it, as far as we’re concerned, about the judicial nomination and confirmation process, that is all the Constitution says.

0:01:25.1 Aaron Powell: What does advice mean in that context?

0:01:30.6 Ilya Shapiro: There were debates about this at the Founding, whether to provide a more precise definition, and ultimately they left it general, to allow the Senate to exercise its prerogative as it sees fit, and that means giving advice beforehand to the President, that this candidate is better than that one, or it means after the nomination, whether in public, or to the President, or on the final, what’s come to be understood, confirmation vote. But that’s as far as this has become defined, and really it’s become defined more in terms of practice and tradition, more than in terms of legal fleshing out.

0:02:15.5 Trevor Burrus: So in that first months of or the first years of the new government, we had George Washington needing to appoint six Justices to the Supreme Court, what was… How did he look at his job of appointing Justices?

0:02:32.2 Ilya Shapiro: Well, each President, going back to Washington, considered political factors. By definition, the President is a politician, Senators are politicians, and the issue or issues of the day changed. With the first setting up of the first court, the key factor that Washington looked at was, were they committed to the new government, were they committed to the new Constitution? How did they view the judicial role? Did they see the Supreme Court, then the federal judiciary as being an important player? Did they see the federal government as being an important player in establishing the new nascent republic? And so even being very careful and having been by definition a Founding Father, Washington nominated someone who declined, declined the nomination, an unusual circumstance, but even of that first slew, he had to do a redo.

0:03:36.5 Trevor Burrus: It wasn’t a very prestigious job at the time, though, to say the least, in those first decade, first decade, at least, of the Supreme Court.

0:03:43.7 Ilya Shapiro: That’s right. It wasn’t just in Washington’s days, with the original six, as we can call them, if you’re a hockey fan that resonates perhaps, but in the first few decades, if you were a prominent lawyer in Boston, say, or if you had a legal practice, or if you were on the Supreme Court of Pennsylvania, why would you give up those remunerative, prestigious, comfortable jobs to go down to the swamp? Well, originally it was the… Washington, there was no White House, they kind of alternated between New York and eventually Washington DC, to, anyway, go down there where there was no building for the Supreme Court, it was housed in the basement of the Senate. Originally, there weren’t that many interesting or important cases, and you had to ride circuit, literally ride on horseback or a horse and buggy to the far‐​flung states to help set up this new federal judiciary.

0:04:41.1 Ilya Shapiro: I mean, this was a grueling and rigorous job physically, in addition to the mental challenges or tediousness, and what have you. So indeed, there were a number of people in our history who declined to serve or who declined the nomination, and even who declined to serve after being confirmed. Communications being what they were, sometimes somebody would be nominated and confirmed by the Senate on the same day because it wasn’t a controversial pick, but by the time news reached Richmond, Boston, Philadelphia, what have you, they said, “Why would I want this job?” And declined to serve.

0:05:15.1 Aaron Powell: Did Marbury v. Madison in 1803 and the rise of judicial review change some of the calculus for confirmation hearings? Because this was effectively the Supreme Court articulating the doctrine that says that it gets to be the supreme law of the land or the supreme decider of the law of the land. And so suddenly, it placed itself in a certain way above Congress, so did Congress then change the way it thought about who would get to appoint… Who it would allow to be appointed to the Supreme Court?

0:05:46.6 Ilya Shapiro: Well, in asking that question there, it’s kind of funny, you stated a malapropism, you might not have realized, but you said did that affect confirmation hearings? We didn’t actually have confirmation hearings until 1916, and we’ll get to that and why that was, but what you mean was, did it affect confirmations? Did it affect the type of people who were nominated? It did somewhat. I think Marbury v. Madison, in its day, the idea of judicial review was not controversial. I mean, what to do with the judicial commissions after the disputed election of the bitterly fought election of Adams versus Jefferson, that was certainly controversial, but the idea of judicial review and the Supreme Court ruling on the propriety, the constitutionality of federal legislation. Remember, this was not invalidating state laws or anything like that, so it was not challenging state sovereignty or anything like that, the fights about nullification, nothing to do with that. This was about the growth and power of the federal government. And within the federal government, the strength of the judiciary check the other branches.

0:06:52.2 Ilya Shapiro: And so, yes, it did make the Supreme Court more important. It did make those jobs more prestigious, more significant. And Marbury v. Madison, remember, the Chief Justice was John Marshall, a very significant player, perhaps the most significant Chief Justice that we’ve had. And a lot of people think of him, mistakenly, as the first Chief Justice. He was not, he was the third, but and this again goes back to your question, because everything that went on for the first 15 years before Marbury was quite insignificant. And so, it was… Marbury was really the birth of the new court or the Supreme Court coming into its own, in a sense of really being its own separate branch rather than some sort of weird appendage that occasionally issued some random decision.

0:07:45.3 Trevor Burrus: Now, we know about James Madison and Alexander Hamilton and others being involved in debates in the very early 1790s about the National Bank and other ways of construing the Constitution. From the beginning there or, at least, in the first few decades, did we see anything like a debate that we would call, maybe in the ‘70s, strict constructionists versus loose constructionists? Was that debate even going on that early between the people who nominated to the Court?

0:08:12.8 Ilya Shapiro: Well, it wasn’t so much a debate about originalism when the people who were the originals, the Founding Fathers, the Framers were still alive and could opine and could say, “Actually, what I meant by that or what I intended or, however you want to define originalism back in the day.” No, it wasn’t so much that. The McCulloch v. Maryland and Gibbons v. Ogden about the scope of federal power and the meaning of the Necessary and Proper Clause and what kind of powers were incident to the enumerated powers in the Constitution, they had those kinds of debates, but it wasn’t so much what we would recognize now as the original meaning of the text versus a more pragmatic or living constitutional interpretation where the words, the provisions evolved. It’s just really trying to understand what the Constitution meant when that was still the founding generation.

0:09:16.2 Trevor Burrus: So, in that first, let’s say, pre‐​antebellum years or whatever line we want to draw, in terms of the political fights over nominees, what were the main considerations, if they weren’t talking about originalism or strict constructionism or whatever? What would be the reason that someone would be not confirmed to the Court, like the most common reasons?

0:09:37.3 Ilya Shapiro: Well, the most common reason was that the party opposite the President controlled the Senate. That’s a very practical, legal realist or political realist explanation for when we have failed confirmations. In our history, and I’ll get back to the time there momentarily, but in our history, we’ve now had 164 nominations. Those 127 were confirmed for an overall confirmation rate of just over three‐​quarters. But when there’s divided government, when the party opposite to the President controls the Senate, the rate of confirmation is south of 60%. When it’s a united government, it’s about 90%. And in that antebellum period, as you said, and especially in the period after the Founding, the second, third generation of the republic, during a time of party realignments, the federalists faded away and the Democratic Republicans were regnant, but then they split between the Jacksonians and others, which became the Whigs and eventually, the Republican party.

0:10:41.7 Ilya Shapiro: That kind of tumult did produce a lot of political opposition, not so much based on interpretive theory of the Constitution or otherwise. A little bit about what the proper role of the federal government is, or even more, what the federal government should be doing regardless of whether… Even if it’s constitutional, should it be intruding in various ways in how the states have become accustomed to governing themselves. And so, those factions within the parties or within the Democratic party, when it was effectively the only game in town, was a really big deal. And so, Andrew Jackson was a towering figure, of course, in the antebellum period, but even he had a couple of misfires. A postponement, Roger Taney, whom he nominated after he had failed to nominate Taney to be Treasury Secretary, Taney’s nomination to the Court was “postponed indefinitely.” I love that Senate euphemism of procedure until he eventually was confirmed after a mid‐​term election when the Jacksonians gained in the Senate.

0:11:52.0 Ilya Shapiro: But really, between Jackson and Lincoln, to talk about that specifically, the antebellum period, only 8 of 21 nominees were confirmed. It’s quite remarkable. John Tyler, for example, who was known as His Accidency, he assumed the presidency after William Henry Harrison caught pneumonia and died after his extra‐​long inaugural address during that snowstorm in March when he didn’t have the overcoat. And Tyler joined the Harrison ticket as a party balancer. And so, ultimately, when he became President… No, he was not trusted by the Whigs. He was not trusted by the Democrats and ultimately, I think he made nine nominations in total, several people, multiple times, and only had one person confirmed. So, a very tumultuous period, weak relatively speaking, executive, regional differences, expanding country, you have to placate different sectional allegiances in addition to ideology, but it wasn’t… Again, it wasn’t this debate. Do you see the… Do you have the right position on either the proper role of the judiciary or the Bank of the United States, which was the key issue under Jackson, specifically, or slavery per se.

0:13:08.2 Ilya Shapiro: That figured in a little bit, and even more so in the lead up to the Civil War, but it really was more kind of base politics and “Are you aligned properly with the President? Has the President consulted and balanced regional interests, different factions within his party,” that sort of thing.

0:13:31.3 Aaron Powell: Do we have a sense of what potential candidate or potential nominee vetting looked like at this time or in the early Republic? Because a lot of contemporary stuff now that goes on behind the scenes is poring through a potential nominee’s scholarly history, life story, and so on, to make sure that to the extent we can, we’ve precluded any surprises or anything that’s going up blow up a nomination or make it too controversial. Did they do that? Did they make that effort? Or was it kind of an easier, “Ah, this guy looks good,” sort of thing?

0:14:08.5 Ilya Shapiro: Yeah, the Twitter and blogging records from the 1840s have been lost to history, but it’s sort of like you want someone who’s qualified, generally. There were some very crony lightweights that were considered, but generally, Presidents wanted someone who would be respected as a Justice, but that was only step one. You wanted to balance, to fill regional interest, that the Supreme Court was conceived of, not on paper, but this was how it came about. There was a New England seat, there was a New York seat, a Virginia or Southern became Southern seat. Pennsylvania, as the country expanded, the Western seat, meaning Kentucky, Tennessee, that sort of thing. And so the President, a lot of them wanted to appoint someone who was more loyal, but they happened to be from the wrong state. Or there were debates of, well, this person was born in that state, but very quickly moved to Ohio and was that good enough.

0:15:07.2 Ilya Shapiro: Those kinds of things, as well as it was really this political balancing consideration, again, much more than either a juris prudentia philosophy or their political position on one key issue, as sort of came to the fore in the decades that followed with Reconstruction, and then the Industrial Age, the proper regulation of the trusts and the railroads and things like that. Those came to the fore, but in that antebellum period, it was all this regionalisms, which still became… Were still important for another half century or more, as well as… Was there sufficient support among all these disparate party machines in different parts of the country?

0:15:58.6 Trevor Burrus: But they also didn’t, wouldn’t have… If you think about the records that people have… It seemed like reading your book that there were fewer, fewer people raised from the lower federal courts to the Supreme Court than there were Senators and members of Congress, and maybe governors and other kind of cabinet secretaries. That was way more common then.

0:16:16.6 Ilya Shapiro: Yes, relatively speaking. There were still elevations, especially when we get to the second half of the 19th century. But yeah, in the first half, there were relatively few federal judges. The ratio of… There were six, or seven or eight, as we progressed, Supreme Court Justices. But the federal judges, I mean, there was one per district, basically. And the Justices, originally, traveled in pairs. A district court was composed of two Justices and one district judge, ’cause that’s just the way the ratios worked. But yeah, there were more state court judges who were picked, and there were more other types of politicians. You’re right, it wasn’t the direct kind of line that you have to first audition in the circuit courts before being elevated.

0:17:02.6 Trevor Burrus: Is there a moment where… Not a moment, but you mentioned that into the later part of the 19th century, where you start having some maybe ideological debates about trusts, railroads, big businesses, things like this, and then it seems like around that time, and maybe it was Roosevelt, from reading this book, that you started seeing more people saying, “I need a Justice who has a specific philosophy about especially big business.” It seemed like that maybe was the kind of, the first kind of philosophical vetting kind of moment.

0:17:34.5 Ilya Shapiro: Yeah, the very early part of the 20th century with Teddy Roosevelt and then William Howard Taft, looking at the “real politics.” And that didn’t necessarily mean judicial philosophy, but it meant, “I don’t care whether you’re a Democrat or a Republican, I don’t care whether you’re… We’ll take some geographic considerations into account, but look, what I really want to know is, are you going to be capital P progressive on breaking up the trusts and pushing back on the banks, or with Taft, are you going to be more laissez faire? Are you going to… What is your perspective? Not even how you interpret the Constitution, or what is your method of statutory interpretation, but your real politics, your political views, which can be instantiated into legal views fairly easier because there wasn’t that much of a federal code to implement, and that the Constitution was fairly pro‐​economic liberty, so it’s just a matter of… You have the Anti‐​Trust Act, and you have the Sherman Act, and you had other tools at your disposal. But that’s really when… Beyond satisfying factions within your party, it became, “I really want this kind of judge to rule this way on my pet issues.”

0:18:49.6 Trevor Burrus: So after the Teddy Roosevelt era and you said Taft, of course, would become Chief Justice himself. You had mentioned, as you corrected Aaron, that the confirmation hearings were not a thing until who?

0:19:02.1 Ilya Shapiro: Until Woodrow Wilson. And this was following, when Taft was a one‐​term president, but he got to make six appointments, including five of them, I think, in the course of 18 months. Just a remarkable period, when you think about that Jimmy Carter, for example, Zachary Taylor, didn’t get to make any appointments in a four‐​year term. So Taft got to make the six and really pushed the Court into a more pro‐​economic liberty, deregulatory sort of environment. That’s what he focused on, so his appointments might have gone in different ways on questions of civil rights, or executive power in different ways, but in terms of economic liberty and deregulation, they were more aligned. Then along comes Woodrow Wilson, who was a towering jurisprudential intellect, a former president of Princeton, and a constitutional law professor, who knew exactly what he wanted out of the Supreme Court, big progressive, the administrative state, we don’t need political accountability because we just have rule by the experts. We know what the right policy is on any given area, so we just need the courts to empower the experts.

0:20:15.4 Ilya Shapiro: And even though, even with that, Wilson’s three appointments probably had the biggest, the widest range of appointments of any President. His first one was James McReynolds, a cantankerous old coot who would have probably agreed with Wilson on little other than a belief in anti‐​trust and bigotry. Other than that, McReynolds very quickly joined the Taft nominees, at least most of them, as one of what became known as the Four Musketeers, pushing back on supporting the Lochner era, that is, deregulation, a constitutional view of the freedom of contract and economic liberty that the government cannot invade. And then his next nominee was Louis Brandeis, and this is where we come to the first confirmation hearing, who not only was the first Jewish nominee and became the first Jewish Justice, but was a progressive crusader. I mean, very with Wilson, a close advisor of Wilson on policy matters, and that was hugely controversial in addition to being Jewish. It took, what, nearly five months to have his whole confirmation run.

0:21:33.1 Ilya Shapiro: The eventual vote was a little broader than some of the recent ones we’ve had in the last couple of decades, but hugely controversial. So controversial that the Senate called hearings for the first time. Now, it was seen as unseemly for the nominee himself to testify, so Brandeis didn’t testify. There were people pro and con his views, and ultimately, he was confirmed. But again, such a tumultuous controversial period that then his new colleague, Charles Evans Hughes, resigned to run against Woodrow Wilson in that fall’s presidential election campaign. So anyone who says that 2020, 2016 were the apogee of the intersection of presidential election politics and Supreme Court vacancies, yeah, I see that, but I’ll raise you 1916. And to close the circle on Wilson, his third nominee caused by that resignation of his political opponent was John Heston Clark, who served for all five years and was basically a footnote in our history. So even though Wilson knew exactly what he was doing, and understood the Constitution as he saw it perfectly well, still had kind of misfires and people that were all over the map.

0:22:41.3 Ilya Shapiro: But anyway, that 1916 hearing was the first one. It didn’t set the precedent that now every nominee would have to have a hearing. Some of them did in the next couple of decades, some of them didn’t. The first nominee to testify on his own right, in kind of open‐​ended questions, as opposed to specifically about a particular scandal he might have overseen or what have you, was Felix Frankfurter in 1938 and 1939, also a Jew, by the by, but hearings didn’t become a regular process until the 1950s when Dixiecrat Senators, Southern Democrats wanted to quiz nominees about their views on Brown v. Board of Education, civil rights, etcetera.

0:23:22.6 Aaron Powell: Did the Justices, or the nominees in those early confirmation hearings, dodge the how would you rule questions, the way that they do today? Was that still considered… Was it considered kind of off‐​limits or did they say, I’m not going to answer on the things that I might be asked to rule on.

0:23:42.9 Ilya Shapiro: I didn’t read much one way or another about those hearings. They were narrow, they were short. As I said, when Harlan Stone was testifying, it was about his overseeing of an aspect of the Teapot Dome scandal when he was Attorney General, and so it was tailored towards that. A lot of the questions weren’t about how would you rule, they were questions on the issues of the day or your ethics and things like that, your experience. So I must admit, I didn’t go through the archives to search for the transcripts, if they exist, for every single one of these things, but it was more the… Any controversy that came out was about people’s judicial and academic writings, rather than anything that came out of the hearings.

0:24:38.5 Aaron Powell: Let’s turn now, I guess, to the New Deal Court, and then Roosevelt’s court packing plan. Could you tell us a bit about that and the effect that kind of that era had on this whole process?

0:24:53.2 Ilya Shapiro: Right. So in the last vestige of the what’s known as the Lochner era, where the Supreme Court would invalidate state and federal laws as intruding on economic liberties, property rights and the like, the Court in FDR’s first term invalidated a good part of the early New Deal, and so Roosevelt was frustrated, he hadn’t had any opportunities to appoint anyone. In fact, that whole entire first term, after winning a very comfortable presidential victory in 1932, and trying to put in the early New Deal, he didn’t have anyone to appoint at all, no vacancies.

0:25:38.9 Ilya Shapiro: So then he’s reelected in 1936, overwhelmingly, this was the “As goes Maine, so goes Vermont” election, he won all but those two states, and the Democrats had super majorities in both the House and the Senate, and he said, “Well, look, I’m… This Court, these old men,” because the reason there were no vacancies, was because they had been appointed somewhat younger, and so it just happened that the actuarial tables worked in a way that there weren’t any retirements or deaths, and he said, “For every Justice over 70 and a half, I’m going to appoint a new Justice to help out the old men who are not capable doing their job,” and that conveniently, was six Justices, and that would have given Roosevelt… Overcome the otherwise majority that was invalidating his programs.

0:26:28.3 Ilya Shapiro: Hugely unpopular, not only did now, Charles Evans Hughes, who was the Chief Justice, interesting return of events as it were, testified against it, but Louis Brandeis, still a progressive and a supporter of FDR, sent him a letter saying… Or signed a letter saying that, “I don’t agree with this.” John Nance Garner, Roosevelt’s own Vice President, campaigned against it. He would end up running in the presidential primary in 1940, because FDR dithered for a long time about whether he would run for a re‐​re‐​election for a third term. Of course, he ultimately did. But anyway, huge opposition in Congress, didn’t get a final vote in Congress, and at the 1938 mid‐​terms, it proved so unpopular that the Democrats lost 80 seats in the House and eight in the Senate. They had such majorities that that didn’t mean that they lost control of those bodies, but it was a big rebuke to Roosevelt.

0:27:21.1 Ilya Shapiro: And as it happened, FDR got to pack the Court the old‐​fashioned way. In the three years following that failed court packing scheme, he got to make seven nominations at the end of the day, and as well as elevating Stone to the Chief Justice. So at the end of the day, the Democrats maintained the White House and the Senate long enough that the natural political churn allowed FDR to pack the Court, but just in the old fashioned way.

0:27:55.8 Trevor Burrus: As we move into the beginning of the pre‐​modern era, where it seems to me that you have some of your first huge constitutional disputes that sort of, in terms of what path is the nation going to go forward in the New Deal, and then you have the next set of those in the ‘50s, especially with Brown, and then the Warren Court. And I think it’s sort of forgotten how much the Warren Court, at least, was the beginning of the creation of the modern conservative legal movement, is somewhat of a rebuke to the Warren Court. So is that where you kind of put the beginning of the modern era with the Warren Court and the backlash against it, and then we start having more and more of these controversies about ideology, rather than region or whether or not you consulted the Senate well enough or something like that?

0:28:44.1 Ilya Shapiro: The Warren Court was definitely the precursor. In fact, my book, which like Gaul is divided into three, we have the past, which is basically George Washington through LBJ, ending at 1968, which was a pivotal year in legal affairs in America, as much as it was for politics, for culture. And then the part two, the present, as it were, is the next 50 years, so Nixon and replacing Warren, through Brett Kavanaugh. I published this before it came out… Actually, it came out four days after Justice Ginsburg passed, but I submitted the manuscript in… Earlier, in 2020. And then the third part is, which we’ll get to, is the what have we learned and proposals for reform.

0:29:29.7 Ilya Shapiro: But yeah, the reason that 1968 is that pivot point is because in the Eisenhower years, Eisenhower tried… He was a moderate Republican, of course, and he tried to look for moderates, solid judges or lawyers who would keep the country on track and be moderate in their views, but also, he wanted to balance things out politically. Nevertheless, he sees… He famously said that the two biggest mistakes that he had made were both sitting on the Supreme Court, and that was Chief Justice Earl Warren, who as Governor of California played a major role in helping Eisenhower secure the Republican nomination, and so he rewarded him for that, and Bill Brennan, who was a state Supreme Court justice in New Jersey.

0:30:22.5 Ilya Shapiro: Although Ike picked him, and in fact, he was originally a recess appointment a month before the 1956 presidential election, when Eisenhower was running for re‐​election. But he picked Brennan, I think, knowing that… He had to have known that he was more to the left, jurisprudentially, he had that record on the state Supreme Court, he was not a shy or retiring personality, but he wanted to shore up, Eisenhower did, his political support among what were known as white ethnics and especially Catholics in the metropolitan Northeast. And so, he achieved that. The 1956 election was a landslide for Eisenhower, but then… So Eisenhower got what he wanted politically, but perhaps not what he wanted jurisprudentially.

0:31:12.3 Ilya Shapiro: And then Warren, somewhat like John Marshall, was so effective in steering the Court behind his own progressive views, both on civil rights and on great society programs, the expansion of the federal government in the ‘60s. But of course, when it came time for LBJ to replace Warren, this is in 1968, and he wanted to elevate his friend and Associate Justice Abe Fortas, ran into a buzzsaw of ethical concerns for doing speeches and things like this and not reporting the proceeds, as well as seen as being too much of a crony, famously advising LBJ on things like where to bomb in Vietnam and things like that.

0:32:01.4 Ilya Shapiro: And so Fortas never had even a majority of support in the Senate, some call it the first filibuster of a Supreme Court nominee, but it never really got even to a majority support, and it was bi‐​partisan opposition for various reasons. And so in 1968, LBJ was thwarted. And Nixon, who I think was the first president to campaign in the modern style of judicial philosophies, “Strict construction, we need law and order Justices,” we didn’t have the rhetoric about originalism or things like this, but strict construction, law and order, that’s what he was talking about, and so appointed Warren Burger, who was confirmed to be the chief, and away we went with these debates over what kind of Justices we want.

0:32:45.2 Ilya Shapiro: Nixon famously also had two consecutive failed nominees, Haynsworth, Clement Haynsworth and Harrold Carswell, for various reasons. He wanted Southern constructionists, and then that was foiled by the Senate for various reasons, and Nixon ended up appointing Harry Blackmun, the eventual author of Roe v. Wade, so also plays into this narrative of the conservative legal movement, that not only are we opposing the Warren Court, but we’re snake bit. There’s always… We’re always one vote shy, we’re always having presidents who are misfiring for one reason or another.

0:33:22.3 Aaron Powell: Earlier this year, we had Congressman Justin Amash on the show, and he mentioned the deleterious effect that television has had on Congress, of Senators and Representatives performing for the cameras when they’re in hearings and other public things. I’m curious about that specifically in the context of confirmation hearings. So when was the first televised confirmation hearing, and has TV had an impact on the way that they go, kind of the theatrics and performance of them?

0:33:57.3 Ilya Shapiro: Yeah. It might surprise you that the first fully‐​televised hearing, not just snippets here and there for the nightly news, but the first fully‐​televised hearings were Robert Bork in 1987. Not because Bork was known to be controversial, and we can talk about him, of course, but because that’s when C-SPAN got its full privileges to broadcast Senate proceedings. C-SPAN had been started a few years earlier and was mostly focused on the House, and then they got their full license, their full permission, to broadcast the Senate, and this was the first major nomination in the Senate once C-SPAN had gotten that, and so that certainly, that wall‐​to‐​wall, gavel‐​to‐​gavel coverage contributed to the notoriety and spectacle of the Bork hearings. Before that, you did have… As I said, there were cameras to record things for… To put together the nightly news packages, but it wasn’t the whole hearings.

0:34:57.5 Trevor Burrus: And so you mentioned Bork, which is a good time to get to that. But also how is the Bork… How is Bork himself, and then, of course, the fact that we created a verb out of his name, to bork someone, but how is that connected to the rise of the conservative and/​libertarian legal movement that sort of came after Burger? And I guess I’m going to append another question which I think is related to this based on something you said, which is why is it that conservatives are the ones who are always disappointed seemingly in a Justice, and how is that tied to the conservative legal movement and Bork himself?

0:35:37.5 Ilya Shapiro: Yeah, it is all tied together. Because first of all, in electing Nixon as in part a response to the excesses of the Warren Court, the Impeach Earl Warren bumper stickers and billboards, largely a response to Brown v. Board in the Civil Rights era, some other concerns as well, the Court having turned to the left in various ways. The response of conservatives to that, the politicians said, “No, we need strict constructionists in law and order,” but what did that mean? How did it translate? We didn’t have a robust legal theory.

0:36:12.8 Ilya Shapiro: So we had Alexander Bickel in the ‘50s who was a professor and then colleague of Bork at Yale Law School, who said that judges should exercise the passive virtues and be restrained and decide not to decide as much as possible. And so the Borkean or conservative reaction to the… What they perceived as the activism… These days activism just means I disagree with what the judge did, but back then it meant kinda making things up out of whole cloth and substituting the judge’s policy views for the Constitution or the statute or what have you. And so the response to that was not, “You got that wrong, here’s a better theory,” it’s, “Why are you being activist? Judges should be restrained.” And so that was very much Bork’s view, early… Most of Scalia was that, that first wave of conservative legal theory, a little bit of Rehnquist, Rehnquist was more on the law and order, strict construction sort of side, the proto‐​originalist, if you will.

0:37:14.6 Ilya Shapiro: But then… Right, so Bork was the first big controversy, because… Well, for one thing, the Democrats had the control of the Senate, and again, I can’t emphasize enough how important the divided versus united government dynamic is for seeing whether there’s going to be controversy or difficulty confirming nominees. But also for some reason, the Roe v. Wade and the growing pro‐​life movement sort of crystallized in the early ‘80s, and abortion became a major issue for the first time with Bork as well. It’s kind of strange, Roe v. Wade was decided in 1973. The first nominee after Roe was John Paul Stevens, moderate Republican nominated by Gerald Ford, was not asked any questions about Roe by either Democrats or Republicans. Neither was Sandra Day O’Connor, there was one squib of a thing, but not really, who was Reagan’s… Reagan was fulfilling his promise to appoint a woman to the Supreme Court, and he found essentially the highest‐​ranking woman lawyer who was a state intermediate appellate judge, having been the state senate majority leader in the Arizona legislature, Sandra Day O’Connor.

0:38:37.2 Ilya Shapiro: And then Rehnquist went up as the Chief Justice, to be elevated to be Chief Justice, along with Scalia when the Republicans still had the majority in 1986. Rehnquist drew all the heat because of memos that he had written when he was clerking on the Court in the ‘50s, certain things that he had done when he was in the Justice Department under Nixon, and still was managed to be confirmed, again because the Republicans had a majority. And Scalia sailed through 98 to nothing, he was affable, he was young, he was the first Italian‐​American. It seems strange now, but that was a huge deal back then. And as I write in my book, if Scalia and Bork had been flipped and it came down to those two, if Bork had gone up together with Rehnquist when the Republicans still had the majority, it’s more likely than not that he would have squeaked through, and Scalia would still have been confirmed, if not unanimously, under the Democratic Senate the following year, but that’s not what happened.

0:39:37.4 Ilya Shapiro: And so Bork who answered, his first major error was to answer the Senators’ questions forthrightly, and give a tour de force of the intellectual legal world according to Bob Bork. As Paul Simon, the Senator from Illinois who was on the Judiciary Committee would later write, he was there to score debaters points and teach the Senators rather than getting votes. And Bork refused to be coached by the Reagan White House, by the Justice Department, which itself was kind of caught on its back foot, they thought that by nominating Bork to replace Lewis Powell, the consummate moderate, they were finding someone who just called them as he sees them. And sure, he might be personally conservative or what have you, but this is a judge’s judge, a towering intellect, one of the leading scholars and judges, he was on the DC Circuit of his day, and did not expect the attack that came immediately. In fact, literally, 45 minutes after the nomination was made when Ted Kennedy went to the Senate floor to talk about “Robert Bork’s America,” a litany, a parade of horribles of what would happen if he was confirmed.

0:40:51.6 Ilya Shapiro: And so, that’s the first time that someone was shut shot down for having the incorrect judicial philosophy, and not playing the game. Again, after Bork the nominees learned that you talk a lot without saying very much, and that was sort of… That playbook was consummated or gilted with Ruth Bader Ginsburg, with her pincer movement about not talking about legal theory or generalities because judges should deal with specifics only, and then not talking about specifics because those cases might come before her. But yeah, when Bork was borked, that was… I don’t call that the birth of the modern age of judicial confirmation, because as I said, 1968 was so pivotal in how we talk about judicial philosophy ever since, but it was the first major escalation and certainly the biggest conflagration at the confirmation hearings live on TV, as you said, Trevor, since those 1916 Brandeis hearings.

0:41:57.7 Trevor Burrus: So can we put our finger on what changed? We’ve kind of gone over this broad thing, and although Bork is in the beginning, things are different now than they were in, say, 1890 or 1830 in terms of the kind of tests that we’re putting on the Supreme Court. So, can we put our finger on what the biggest causes of this change is, in how just sort of mean and divided and just visceral these confirmation hearings have become?

0:42:29.0 Ilya Shapiro: Right. As we’ve discussed, politics has always been part of the process, and even if more Justices were rejected in our country’s first century than its second, there is… We do feel that there’s something different now. Confirmation hearings are the only time that judges go toe‐​to‐​toe with politicians and that’s definitely a different gauntlet than even President Tyler’s nominees ran. So, maybe it’s TV and Twitter and the 24‐​hour news cycle, the viral video, or have legal issues become more ideologically divisive? I don’t think so. I don’t think any of that is right, the nomination and confirmation process, which has always been a dance among the President, the Senate and outside stakeholders, that hasn’t somehow changed beyond the framers’ recognition, and for that matter, political rhetoric was as nasty in 1820 as it is in 2020. I’m sure you’re both familiar with those videos of the Jefferson‐​Adams election campaign, when if you look at the pamphlets and the speeches of that campaign put into a modern attack ad, it’s more rhetorically nasty than even what we see now.

0:43:37.0 Ilya Shapiro: But I think all of these parts of the current system that we don’t like are symptoms of a larger phenomenon. As government’s grown, so have the laws that courts interpret, and the reach over ever more of our lives. And this senatorial brinkmanship, these toxic hearings, that’s symptomatic of a larger problem that began long before Bork, let alone Kavanaugh or Garland, or Clarence Thomas. And that’s the Court’s self‐​corruption, aiding and abetting the expansion of federal power, and then shifting that power away from Congress to people’s legislative representatives, and toward executive branch, administrative agencies. And so the Court and the judiciary more broadly is called upon to decide so many big issues affecting public policy more than it ever did, and those decisions increasingly turn on the party of the President who nominated the judge or justice; that is to say, what we have is divergent theories of constitutional and statutory interpretation, that map on to party preferences at a time when the parties are more ideologically sorted and polarized, than at least the Civil War.

0:44:52.7 Ilya Shapiro: And so of course, confirmation battles are going to be fraught, because after all, we have a zero‐​sum game. Whatever the number is, whether it’s 9 or 15, or the lower court seats, those matter and there’s no way to compromise when you have that kind of dynamic. And so that’s where we are. It’s not that all of a sudden Senators are more demagogic than they were in the 1960s, or that our battles now over whatever it is, the Second Amendment or affirmative action are more bitter than the battles over desegregation or the Bank of the United States or whatever the issue of the day might be at any given time. But this sorting of the parties and the divergence of the interpretive theories brings you to what we have.

0:45:40.6 Aaron Powell: How do we start fixing it, then? How do we start returning this, both the Court and the hearings that put people there, to something that we think is better or more helpful or more likely to produce quality Justices? I mean, one thing you hear about is, part of the problem is these are lifetime appointments, so that makes it, on top of all the other stuff of the kinds of cases the Court is asked to decide on, when you place someone there, they’re there for an awfully long time, and so, can have a huge influence, and so of course, we’re going to fight about them. So would setting term limits, lengths of term, only letting them be there for a little while, would that be one way to move things in a better direction?

0:46:27.8 Ilya Shapiro: Yeah. There have been a lot of reform proposals. Term limits is probably the most serious one that keeps coming up again and again. And the seminal article about this was written by Steven Calabresi and Jim Lindgren in 2006, in the Harvard Journal of Law and Public Policy. It’s exhaustive, it convinced me to be at least two cheers for term limits, in the sense that if you had 18‐​year terms with a vacancy every two years, and if there’s a vacancy because of a death or a retirement in the interim, you get to fill only the remainder of the given term. That would guarantee each presidential term two and only two vacancies, you know when they’re coming in the non‐​election years, and each seat would be worth marginally less, because only good for 18 years rather than the 30 plus that people now can serve. So that would get rid of the politically timed retirements, it would get rid of the morbid health watches over octogenarian Justices, which aren’t healthy, and arbitrary vacancies and that sort of thing.

0:47:34.8 Ilya Shapiro: But what it wouldn’t do is ideologically rebalance the Court, it wouldn’t change the nature of the issues that the Court is ruling on, or change this dynamic that I’ve described, if the divergent interpretive theory is given, mapping on to a partisan preferences, which causes these big fights. So look, I’m amenable to it, in the sense that it would likely enhance public confidence in the Court to have regular vacancies, and we know that it’s always 18 years, and we know that every time we elect a President, they’re going to get two slots, not potentially four, maybe zero, but definitely two, first one’s coming next year and then two years after that. That’s great, but it won’t solve some of these underlying problems. So we’re still… Fighting over one of nine very important positions of power for 18 years is still going to be a fight, even if we kinda regularize when it comes about.

0:48:30.4 Ilya Shapiro: As far as other proposals are concerned, whether you call it court packing or just changing the size of the Court, even if not politically motivated or for partisan gain, now the Democrats… The talk was, they need to pack the Court to re‐​balance the illegitimate, the so‐​called illegitimate Justices of the norm‐​breaking Republicans and what have you. That’s not going to depoliticize the Court to have that kind of thing go through. But even if we think about it in neutral terms, if we were drawing up a judiciary or a Supreme Court from scratch, maybe we would want 15 or 19 Justices, because there’d be fewer 10 to 9 decisions, and each one of that many seats is worth less than each one of nine, so that would defuse tensions a little bit.

0:49:18.4 Ilya Shapiro: Maybe you’d even have an even number of Justices, as some countries have, so you’d need a two‐​vote margin to do anything. Maybe, but how do you get from here to there? I mean, we’re at such a politicized period, in such a polarized, divisive period, that if we got to some sort of compromise or some sort of unity on that kind of question, in terms of size, timing, etcetera, well, then wouldn’t we… The underlying issues or the underlying divisiveness that this is supposed to fix, might not be there in the first place.

0:49:51.2 Ilya Shapiro: Then there are other kinda more radical proposals, like having a larger Court, but a certain number reserved explicitly for Republicans, a certain number for Democrats, and then the rest have to be unanimously approved by the so‐​called partisan Justices. Well, it doesn’t exactly depoliticize the Court to have some Justices with an explicit partisan label on them. Lots of different creative radical ideas, but at the end of the day, all of this is nibbling around the edges, trying to address symptoms, rearranging deck chairs on the Titanic. Because the problem isn’t with the process, the confirmation process or the nomination process, it’s with the product, it’s that the Court is important, rules on major political controversies because the federal government is so important and skewed within the federal Government, as I said, towards the Executive Branch, that bureaucrats can’t be voted out, they can only be sued.

0:50:44.3 Ilya Shapiro: And so, the Titanic is the ship of state. It’s taken us decades to get to where we are, and it would only… It would take decades to go back, so I have no overnight magic fixes. If I were czar or ruler of the universe, or at least the Constitution or our system of government, and I snapped our fingers, it wouldn’t be a matter of reforming the Court or changing its structure or changing its jurisdiction even, it would be rebalancing our constitutional order enforcing federalism and the separation of powers, kind of like what Team Libertarian did in the national constitution projects, constitution drafting project, where Tim Sandefur, Christina Mulligan and I, we joked that all we needed to do was add, “And we mean it,” to every clause in the Constitution, we added a few other tweaks, but that’s it.

0:51:37.1 Ilya Shapiro: The Court corrupted itself, the Court is the… By letting the rest of the government, the federal government, get away with so many things, it aggrandized its own power and therefore made each of those Justice slots so important and so, why people fight over them tooth and nail. And so in the long term, the only solution, again, not easy, not quick, is to let Texas be Texas, and California be California, and Virginia be Virginia, etcetera. The Court would still have to resolve questions of civil rights and individual rights that are controversial, whether it be abortion or gun rights or things like that, but at least we would have a more orderly system of government and have the Justices be less important.

0:52:27.9 Ilya Shapiro: But again, it’s tough, because the Court, the constitutional order is reflective of the people, and if the people are so divided with so different visions, then the starting place has to be having fewer one‐​size‐​fits‐​all mandates or other policy decisions made by Washington and by the black‐​robed arbiters of 1 First Street for such a large, diverse and pluralistic society.

[music]

0:53:06.3 Aaron Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple Podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.