By Lee Epstein & Jeffrey A. Segal
President Bush’s nomination of Harriet E. Miers to the Supreme Court has politicians and pundits questioning her qualifications for the job. But in the hyper-partisan world of Supreme Court nominations, do qualifications really matter? The answer—which may surprise those who claim the appointment process is a “mess,” “badly broken,” and “unpredictable”—is absolutely.
Over the past fifty years, seven out of 28 Supreme Court nominees have faced serious battles for confirmation. Three were rejected outright by the Senate (Clement Haynsworth, G. Harrold Carswell and Robert Bork), two were withdrawn by the President (Abe Fortas, Daniel Ginsburg), and two others survived despite 30 votes cast against them (William Rehnquist in 1986, and Clarence Thomas).
What six of these seven nominees have in common is a lack of qualifications, or at least a perceived lack of qualifications. We learned this when we, along with another political scientist, Albert Cover, examined editorials in four leading newspapers with diverse ideological leanings. For each of the 28 nominees to the Court, we evaluated statements by the editors that characterized the nominee as well qualified, unqualified, or somewhere in between, from the time of the nomination until the vote in the Senate. From these evaluations, we derived a measure of the perceived qualifications of all 28 candidates.
In the most-qualified category we find, among others, the liberal William Brennan, the conservative Antonin Scalia, and the moderates Lewis Powell, Sandra Day O’Connor, and Ruth Bader Ginsburg. All were approved either by voice vote (Brennan), unanimously (Scalia and O’Connor) or with three (Ginsburg) or fewer (Powell) no votes.
Ideology, of course, also matters, even for the highly qualified. …
… Justice Ginsburg astutely positioned herself as a mainstream Democrat, and not an ultra liberal out of touch with American values. She was strategically silent about any issue that might come before the Court. After she told the Senate’s Judiciary Committee that “a person’s birth status . . . should not enter into the way that person is treated,” one member asked her about her attitude toward “sexual orientation.” Her response was entirely noncommittal: “Senator, you know that that is a burning question that at this very moment is going to be before the Court. . . . 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.”
Such strategic silence, while frustrating to some senators, served Ginsburg well. Had she stated her views on gay rights, she instantly would have alienated half the Senate. More recently, John G. Roberts refused to tell the Senate whether his brief for the first Bush administration calling for Roe v. Wade to be overturned represented his views, rather than his client’s. Had he done so, he too would have made a large number of ideological enemies. But given his decision not to answer, the Senate had little to go on but his preeminent qualifications. For 22 Senators this wasn’t enough, but for 78 of them, it was.
At the other end of the scale we find two failed Richard Nixon nominees, the conservatives G. Harrold Carswell and Clement Haynsworth, along with William Rehnquist (1986) and Clarence Thomas. The liberal Lyndon Johnson nominee Abe Fortas (1968), and the moderates Byron White and Stephen Breyer did not fare much better.
Carswell deserved his cellar-dwelling evaluation. A racist and often-reversed judge, even his supporters deemed him “mediocre.” Haynsworth, on the other hand, may have deserved better treatment from the press. Like Justice Breyer, he voted on cases in which he had minor financial interests, totaling no more than a few dollars. Nonetheless, because Haynsworth was chosen to replace Justice Abe Fortas, who had accepted speaking fees from parties to a lawsuit that could have made its way to Court, these allegations were sufficient to energize liberals opposed to Haynsworth’s anti-labor record.
Rehnquist’s “brilliant” legal mind earned him praise from the editors when nominated for associate justice in 1971. But in 1986 allegations surfaced that he harassed minority voters in Arizona in the 1960s. He also denied under oath, in statements his ideological detractors disbelieved, that the law clerk memo he wrote in 1954 defending separate-but-equal schools represented his views, rather than Justice Robert Jackson’s.
Finally, we have Clarence Thomas. As was the case for Carswell, editorialists questioned Thomas’s professional ability. Then came Anita Hill’s sexual harassment allegations, which gave his detractors an ethics complaint to go along with concerns about his competence. The New York Times reflected the views of many commentators, when its editors wrote “Believe [Thomas] or not, to confirm him is to gamble. If Judge Thomas were a brilliant jurist, a Holmes or a Brandeis, the gamble might be justified. But Clarence Thomas offers no such brilliance, no basis for gambling with the public’s confidence in, and the future of, American law.”
In each of these cases, senators ideologically distant from the nominee found the qualifications charges to be sufficient to warrant rejection (for example, Ted Kennedy opposed William Rehnquist), while senators who shared the nominee’s ideology consistently voted to approve (for example, Orrin Hatch supported Clarence Thomas). While neither White’s nor Breyer’s qualifications were perceived as all that stellar—White for a lack of judicial experience, Breyer for voting on cases in which he had mild financial interests—both were also thought to be moderates, limiting the sort of ideological opposition that ensues when qualifications are suspect.
What of Harriet E. Miers? That she has no judicial experience is being used against her, though neither John Marshall nor Earl Warren, two highly rated chief justices had ever served as a federal judge. Nonetheless, Miers’ lack of experience will enable ideological adversaries to oppose her without appearing overtly partisan.
What is unusual is the degree to which it is her fellow conservatives, and not liberals, who are challenging her qualifications. Perhaps conservatives are exercising an unprecedented level of principle—at least for ideological allies. More likely, though, given some ambiguities about Miers’ views, not to mention the past disappointments of David Souter and Anthony Kennedy, they are insisting on an unprecedented level of known ideological compatibility.
Lee Epstein and Jeffrey A. Segal are the authors of Advice and Consent: The Politics of Judicial Appointments.