As Constitution Daily counts down to Neil Gorsuch’s Supreme Court testimony, we look back at how this dramatic process started – and why we have public nomination hearings at all.
Felix Frankfurter testifies in rare photo, 1939. Source: Library of Congress
In recent years, these live televised hearings have become a rare, but important, look into the interaction between two of the three federal government branches. Only the Senate has the ability to confirm a Supreme Court Justice, who serves indefinitely on the nation’s highest court.
But the Senate didn’t even have public confirmation hearings until 1916, when the contentious nomination of Louis Brandeis brought the confirmation process into the sunlight. A Supreme Court nominee didn’t even appear at a confirmation hearing until 1925, and gavel-to-gavel television coverage of hearings didn’t begin until Sandra Day O’Connor’s testimony in 1981 on cable television. Here is a review of significant moments in the nomination process from 1789 to the late 1970s – before C-SPAN and then CNN changed how we viewed this Court nominations.
The Senate’s Judiciary Committee has been involved in the beginning part of the Supreme Court nomination from process since 1816, when the committee was first created. Until 1868, when a Senate rules change said that all Supreme Court nominations should be sent to a committee (with few exceptions), the Judiciary Committee handled two-thirds of all Supreme Court nominations made by the President.
After 1868, 90 of 96 Supreme Court nominations have been referred to the Judiciary Committee. The exceptions included the nominations of former President William Howard Taft and Senator James Byrnes, the last person confirmed directly by the full Senate (in 1941).
Before 1916, the committee held its deliberations in private and in executive session. In just one case, in 1873, were witnesses asked to testify at these non-public hearings.
On January 28, 1916, President Woodrow Wilson nominated the successful Boston attorney Louis Brandeis to the Supreme Court. Brandeis accepted Wilson’s nomination, knowing it would be a difficult fight. Not only was Brandeis associated with Wilson’s belief that public policy shouldn’t be driven by Big Business, Brandeis was also Jewish in an era when that fact alone would marshal considerable opposition to his nomination to the Supreme Court.
Republicans opposed Brandeis as a radical and the committee opted to invite expert witnesses to a public hearing in the Senate that lasted 19 days – the longest hearing session on record for a Supreme Court nominee. After a four-month process, the Senate confirmed Brandeis, who didn’t attend the public hearings.
The first Justice to appear at his own hearing was Harlan Stone in February 1925. Stone appeared in private before the committee, at the urging of President Calvin Coolidge, to talk about his role as the attorney general prosecuting the Teapot Dome scandal.
But beginning with Benjamin Cardozo’s nomination in 1932, nearly every nominee has had some type of public hearing. The exceptions before the 1980s were the nominations of Byrnes, Hugo Black, Harold Burton and John Marshall Harlan II. Cardozo didn’t need to appear at his public hearing; however, it was the public reaction to Black’s non-public hearing in 1937 that led to the first modern-type hearing, for Felix Frankfurter, in 1939.
As a former Senator, Black’s nomination didn’t receive a public Judiciary Committee hearing and he was confirmed in just five days. After Black joined the bench, reporters discovered that Black was once a Ku Klux Klan member. The subsequent outrage led to the committee insisting that Frankfurter appeared in public for his 1939 hearing and that he answer open-ended questions from the committee.
Robert Jackson in 1941 and John Marshall Harlan II (at a second 1955 hearing) also testified publicly before the committee, but nine other nominees between 1939 and 1955 didn’t. And in one case, a nominee refused to testify before the committee.
In 1949, former Senator Sherman Minton turned down the committee’s request to appear before it when several Senators wanted to know about Minton’s role in President Franklin Roosevelt’s 1937 plan to pack the Supreme Court with more Justices. After Minton’s refusal to appear, the committee withdrew the request.
After Harlan’s hearing in 1955, nominees in almost all nominees have appeared in public before the Judiciary Committee to field a variety of questions. (In 2005, President Bush withdrew nomination appearances for John Roberts and Harriet Miers, with Roberts later appearing before the committee for his Chief Justice confirmation.)
Until the 1980s, few hearings involved extended comments from committee members, with some exceptions. Law professors Paul L. Collins Jr. and Lori Ringhand, in a recent analysis, noted that Thurgood Marshall’s 1967 confirmation hearing was marked by extended questions related to the Warren Court. And Clement Haynsworth’s hearing in 1969 also had extended questions and comments from the committee.
Collins and Ringhand said that some of the pre-1980s hearings weren’t substantive. For example, one-third of the questions asked at Byron White’s 1962 hearing were about his football career. The Marshall hearing in 1967 and then John Paul Stevens’ post-Watergate appearance in 1975 were the beginning of the style of nomination hearings where a many issues were discussed.