Supreme Court nominee Elena Kagan has gotten some unexpected help in recent weeks from two sitting justices.
Antonin Scalia managed to undermine Republican complaints that Kagan lacks the requisite experience to be a Supreme Court justice when he said he was "happy to see" she isn't a sitting judge. Meanwhile, Anthony Kennedy questioned the wisdom of trying to nail down how a nominee will vote on particular legal questions, which he dismissed as a "rather short-term exercise."
The two justices' oblique support pales in comparison to the explicit endorsement Justice John Paul Stevens, who Kagan would succeed, offered 23 years ago to a far more controversial nominee. Stevens raised eyebrows in July 1987 when he said he considered Robert H. Bork "very well-qualified" and predicted the nominee would be "a very welcome addition to the court."
At the time, no one could recall a sitting justice ever injecting himself into a pending confirmation that way. It was all the more surprising that Stevens should do so on behalf of Bork, given how polarizing his nomination had become. The conservative law professor and federal appellate judge had attracted withering attack from liberals from the moment President Reagan had announced his nomination to replace the court's key swing vote, Lewis F. Powell.
The praise from Stevens, then still considered a moderate centrist rather than the leading liberal he later became, did nothing to stem attacks on Bork. And as the criticism intensified, one of Stevens' fellow justices, William J. Brennan Jr., privately began to harbor his own deep misgivings about the way Bork was being treated.
Brennan, then 81, had emerged as the court's most influential liberal in the 31 years since President Eisenhower appointed him in 1956. He knew better than anyone how much was at stake. Bork would almost certainly have reinforced the bloc of conservative justices intent on rolling back the rights revolution Brennan helped engineer under Chief Justice Earl Warren.
Nevertheless, Brennan came to believe "all the hype, the advertisements, and the television shots" against Bork had gone too far and questioned whether senators "should be parties to something like that."
"I think they rather demean the process and give it the appearance of an ordinary ward fight in Chicago," Brennan confided to his biographer, Stephen Wermiel, in a private conversation in his chambers on October 28, 1987, the details of which has not been revealed until now. Five days earlier, the Senate had rejected Bork by a 58 to 42 margin.
Like Stevens, Brennan thought all the dire warnings about Bork had been overblown. "I'd have been not at all unhappy to have him as a colleague," Brennan said at the time. "I'd just have one more with whom I'd probably not always agree."
Brennan admitted none of this publicly and thought Stevens had made a mistake by doing so: "God, the last thing in the world any of us should do is be willing to comment on any appointment, if someone's going to be a new colleague."
Perhaps Brennan did the right thing by staying quiet. Sitting justices understandably want to avoid entangling themselves into the confirmation process that is the sole province of the elected branches of government.
History has proven just how much Brennan benefited from the fact that Kennedy, a moderate conservative, rather than Bork has sat on the Supreme Court for the last 23 years.
But what if Brennan had followed Stevens' example and spoken out? No one had more moral authority on the left at the time than Brennan, due to his landmark opinions bolstering the rights of minorities, women, the poor and criminal defendants. The fact that Brennan had so much to lose from Bork's confirmation only reinforced his singular standing.
Liberals senators and activists would have had to choose between either ignoring Brennan, who they consider a hero or trying to discredit him. Ted Kennedy, Bork's chief antagonist in the Senate, might have found that task particularly unpleasant a year after sending Brennan a 50-year-old bottle of Irish whiskey to mark his eightieth birthday.
Brennan could have done little to counter the damage Bork inflicted on himself with his gruff and excessively candid testimony before the Senate Judiciary Committee. But he might have provided southern Democrats, who feared alienating African American voters back home, with the cover they needed to vote for Bork on the Senate floor.
Aiding Bork's confirmation, though, would not have done much to reign in contentious confirmations. In fact, by helping make the courts an agent for social change, Brennan did as much as anyone to spark the judicial confirmation wars.
With so much at stake, conservatives did not want to repeat the mistake of appointing another Brennan - or a Powell, for that matter - who had proven so costly. Similarly, liberals could not afford to let conservative, although undeniably competent, nominees such as Bork replace the Court's swing justice.
Brennan was ultimately powerless to stop senators from voting against perfectly competent, albeit ideological objectionable, judicial nominees. At best, he might have merely postponed the two parties' ensuing decades-long race to the bottom.
Twenty years after Brennan's retirement, we are witnessing yet another confirmation battle where most senators of the opposite party seem inclined to reject a nominee based largely on ideological grounds. Unfortunately, ugly confirmation fights are one legacy of Brennan's tenure that would have survived no matter what he might have said publicly in 1987.
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