After a tense start on Tuesday to the Senate Judiciary Committee’s confirmation hearing for Supreme Court nominee Brett Kavanaugh, Utah Senator Mike Lee used his introductory remarks to offer a history lesson: As he explained, the inquisition to which nominees are now subjected is a result of a process that has evolved over many decades.
There’s nothing in the Constitution that says nominees must testify at their hearings, or that hearings have to take place at all. The Senate could just vote. But, these days, they don’t — and there are several important reasons why.
The only thing the Constitution is clear about is that the public shouldn’t have the final vote on these nominees. For the “people at large” to hold the “power of appointment” would be “impracticable,” Alexander Hamilton wrote in Federalist Paper #76. So, Article II Section II of Constitution says the President “shall nominate” the justices, “by and with the advice and consent of the Senate.” At the time, state legislatures chose U.S. Senators, so the selection process was even further removed from the passions of the people. But for a long time, that “advice and consent” took place largely without any grilling of nominees.
“If you were uncontroversial, you didn’t get a hearing,” says Paul M. Collins, Jr., co-author of Supreme Court Confirmation Hearings and Constitutional Change. “Hearings were held behind closed doors and only outside witnesses would testify.”
According to research by Collins and law professor Lori Ringhand, the first hearing of a nominee took place in 1873 and forced President Ulysses S. Grant to withdraw a nominee, Attorney General George H. Williams, over a probe into his use of Department of Justice funds for household expenses. The first hearing that was open to the public took place in 1916 over President Woodrow Wilson’s nominee Louis Brandeis, prompted both by anti-Semitism and Brandeis’ reputation as the “People’s Lawyer” for his public-interest work. Brandeis refused to testify, and the committee deliberated for four months before he was confirmed 47-22. There was also a hearing in 1922 over Pierce Butler — who was also confirmed, 61-8, without testifying — over allegations of professional misconduct. In 1925, Harlan Fiske Stone became the first nominee to testify before the Judiciary Committee, which had been established in 1816, and was questioned about his role in the Teapot Dome scandal. That hearing was closed to the public, and the Senate swiftly confirmed him 71-6.
By the mid-’30s, it was still seen as a courtesy to a nominee — often a rather august personage already — to spare him from a hearing. After all, hearings were tied to scandals. Even when a hearing did happen, the nominees did not always appear in person.
The situation began to change after a different kind of scandal reshaped many Americans’ thinking about the process. This time, the confirmation itself was the problem. About a month after the Senate voted to confirm Supreme Court Justice Hugo Black, 63-16, after five days of deliberation and no public hearings on the nomination, the Pittsburgh Post-Gazette broke the news that he was a member of the Ku Klux Klan. It was what TIME called “the prize political scandal of the year.” President Franklin Delano Roosevelt, who had nominated Black, claimed this was news to him as well.
When Felix Frankfurter was nominated in 1939, the Senate was trying to avoid another Hugo Black controversy. (As Sen. Lee pointed out on Tuesday, they were also concerned because Frankfurter was born outside the U.S. and had written about the treatment of anarchists in the court system.) The Senate opened up Frankfurter’s hearing to the public, so that Frankfurter would be “scrutinized thoroughly,” in light of “criticism of the Senate’s speedy confirmation” of Black, according to the Jan. 8, 1939, edition of the New York Times.
“Small, well-brushed and jaunty, his pince-nez sparkling in 40 flashlights, he appeared,” TIME noted that week, after the Senate decided to summon him in person. “The audience could not have been bigger or more enthusiastic had he been Shirley Temple. With some acerbity he questioned the propriety of Senators publicly examining a nominee for the nation’s highest court.”
Frankfurter responded fiercely to doubts about his patriotism, and was quickly confirmed. And yet, the idea that public questioning was an insult clearly remained.
Not long after, however, many Americans would realize to a new extent just how much the make-up of the Supreme Court could affect their own lives. At the heart of that realization was one important case: the landmark 1954 Brown v. Board of Education case, in which the Supreme Court ruled against school segregation.
When John Marshall Harlan II was being considered for the Supreme Court in 1955, it was already clear that the nation was split over the Court. Concern over who sat on the nation’s highest court and what future justices might rule skyrocketed, especially in the South. “That’s when people really began to notice the Supreme Court playing a larger role in Americans’ lives,” says Justin Wedeking, co-author of Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade.
Ever since Harlan, confirmation hearings have been a key part of the process.
In Harlan’s case, as TIME argued, there was an extra layer to that interest: his grandfather had been the sole dissenter in Plessy v. Ferguson, the 1896 case that upheld the constitutionality of “separate but equal” facilities, the logic of which was overturned by Brown. But the Brown decision and its backlash would also play a central role in the confirmation process for Potter Stewart in 1959; “In their frequent irritation at Supreme Court decisions, some Senators cannot resist the temptation to make court appointees squirm,” TIME noted. (Though this predated Ruth Bader Ginsburg’s time on the bench, Stewart evoked the so-called Ginsburg Rule and refused to answer questions that might affect future cases. The Senate confirmed Stewart 70-17.) Race would also play a role, though differently, in the 69-11 confirmation of Thurgood Marshall, who would in 1967 become the court’s first African-American justice. Marshall was peppered with hundreds of questions on arcane facts, to the extent that TIME compared the hearing to a scene that “might have been a Southern county courthouse in the bad old days, with a white registrar administering a literacy test designed to confound even the best-educated Negro.”
As TV news coverage of nominations increased, these fraught hearings rose to a new level of spectacle.
“Congressional inquiries were starting to be nationally televised at this time,” says Barbara Perry, the Director of Presidential Studies at the University of Virginia’s Miller Center of Public Affairs, speaking to TIME as part of a presidential-history partnership between TIME History and the Miller Center. As events such as the 1954 Army-McCarthy hearings drew national attention to what could be seen of Washington on television, that interest eventually spread to television — an trend that reached fruition in 1981, when Sandra Day O’Connor’s hearings were broadcast.
“Klieg lights and cameras bring out the senatorial urge to hear the satisfying sound of one’s own voice,” TIME reported back then. “The rambling inquiries directed at O‘Connor often seemed designed less to elucidate her judicial philosophy and qualifications than to give the questioner an opportunity to state one of his own pet political positions.”
That opportunity was one Senators didn’t want to pass up, and the national spotlight raised the stakes for them — and, as a result, changed the tone of the hearings.
“I think most Americans would be shocked to learn that prior to 1981, it was rare to get half of the committee to show up and ask questions,” says Wedeking. “TV gave them a huge incentive to show up. You have almost 100% participation in hearings from O’Connor onward.”
And while the Founders may not have wanted to give the people the power to directly confirm Supreme Court justices, citizens have found ways to influence the nomination selection and confirmation process from the outside. Liberal interest groups played a key role in the rejection of Reagan’s nominee Robert Bork, while setting a precedent for future exchanges over ideology in future hearings; conservative interest groups provided a lists of possible nominees, including Kavanaugh, to President Trump since before he was even elected. Tensions were high back then because Bork would be playing a historic role in the court, filling what had been a swing seat — and Kavanaugh is in the same position today.
In the 21st century, as the polarized political climate is amplified by live cable TV and social media, it’s hard to imagine a time without confirmation hearings, as the Senate’s power to vote on Supreme Court nominees is deemed especially vital. So there’s no question about the Senate’s role in checking presidential power — but lots of questions about how Kavanaugh would rule on cases involving checks on presidential power.
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