TESTIMONY OF MARCIA D. GREENBERGER, CO-PRESIDENT

NATIONAL WOMEN'S LAW CENTER

BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS, COMMITTEE ON THE JUDICIARY OF THE UNITED STATES SENATE

ON "SHOULD IDEOLOGY MATTER? JUDICIAL NOMINATIONS 2001"

June 26, 2001

My name is Marcia Greenberger, and I appreciate your invitation to testify today. I am Co-President of the National Women's Law Center, which since 1972 has been at the forefront of virtually every major effort to secure and defend women's legal rights. With me is Judith Appelbaum, the Center's Vice President and Director of Employment Opportunities. ⁽¹⁾

The issue that is before the Subcommittee today is one that is of central importance to the American people. What is at stake is nothing less than the composition, for decades to come, of one of the three separate and equal branches of our government. While more public attention is generally focused on the process of selecting the occupants of the other two branches - through the Presidential and Congressional elections - the judiciary has at least as much impact on the lives of our citizens, through its role in interpreting and applying the laws of the land that govern us, including the fundamental rights and liberties protected by the Constitution. Moreover, because members of the judicial branch are appointed with lifetime tenure, the scrutiny that they receive during the nomination and confirmation process is the only form of accountability for them that our system provides, short of the extreme - and extremely rare - remedy of impeachment. That is why the way in which the Senate carries out its constitutional role in the confirmation of judges is of such paramount importance to all Americans.

For women, and in fact for all Americans, over the last 30 years the federal courts have allowed important advances to be made in the elimination of barriers to equal opportunity for all. Through their interpretations of the equal protection and privacy guarantees of the Constitution and of federal statutes aimed at eradicating sex discrimination and arbitrary barriers to the advancement of women, minorities, the disabled and older Americans, the federal courts have given life to the protections our laws provide for important rights and liberties -- including the right to equal opportunity in the workplace, in education, and indeed in all facets of society, as well as a woman's right to choose to terminate a pregnancy. The role of the Supreme Court in protecting women's rights, with some barely surviving by 5 to 4 margins, and the ways in which many hard-fought gains have been weakened by slim majorities of the Court in recent years, are the subject of a National Women's Law Center report entitled The Supreme Court and Women's Rights: Fundamental Protections Hang in the Balance, which is attached to this testimony and which I would like to submit for the record. This report documents in detail how a shift of even just one vote on the Court could turn back the clock for women's core legal rights.

While our report focuses on the Supreme Court, it is important to recognize the enormous power that lower federal courts, especially the Courts of Appeals, also wield over these and other critical issues. The vast majority of cases in the federal system are never accepted for review by the Supreme Court, and the highest level of review available is a Court of Appeals. ⁽²⁾ Indeed, the number of cases heard by the high court has declined in recent years. ⁽³⁾ Moreover, while some have suggested that lower court nominations require less scrutiny because these courts are constrained by Supreme Court precedents, the Supreme Court's jurisprudence in many areas leaves a great deal of latitude for lower courts. For example, the Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), adopted a highly subjective standard that allows states to impose restrictions on abortion as long as they do not place an "undue burden" on a woman who seeks to terminate her pregnancy. When is a burden "undue"? The Supreme Court gave little guidance, and some lower court judges decided that even substantial obstacles placed in a woman's path were not "undue. " A full eight years elapsed between the time the Supreme Court established the standard and the time it first reviewed any lower court's application of it in 2000, and countless women had their right to choose irrevocably lost by erroneous lower court rulings in the meantime. On other issues, some judges have gone so far as to disregard precedents of the Supreme Court altogether. ⁽⁴⁾

Lower court appointments also take on particular significance in light of the current composition of many of those courts. A majority of the Courts of Appeals are comprised of majorities that reflect a conservative judicial philosophy. And the extreme views of some Circuits, especially the Fourth, on the fundamental legal issues of the day have been the subject of extensive commentary. ⁽⁵⁾ A tilt to the right has been exacerbated by the Senate's refusal to confirm an inordinately high number of qualified nominees - some 36 in all - to the Courts of Appeals during the last eight years, thus disrupting the balancing process that normally takes place over time as Administrations change. There are now over 30 open seats on the Courts of Appeals. If these seats are filled with conservatives who make it through the Federalist Society screening process, and who fit the mold of Justices Scalia and Thomas (whom President Bush has cited as appropriate judicial role models), the overall ideological tilt of the federal judiciary will shift even further to the right, with serious repercussions for all those who look to the courts for the protection of civil rights, women's rights, individual liberties, and other fundamental values of our society. We will see even fewer of the splits among the Circuits that normally trigger Supreme Court review, and less of the kind of debate among different judicial perspectives within panels of Circuit judges that can affect the outcome of cases and the development of the country's jurisprudence.

Moreover, the very ability of Congress to protect the American people is on the line. When the courts take an unduly narrow view of the constitutional authority of Congress to pass legislation - as the Supreme Court has done, to cite just a few examples, in striking down the civil rights remedy in the Violence Against Women Act ⁽⁶⁾, invalidating the right of plaintiffs under the Americans with Disabilities Act ⁽⁷⁾ and the Age Discrimination in Employment Act ⁽⁸⁾ to hold state employers accountable for their discrimination, and striking down the Gun-Free School Zones Act ⁽⁹⁾ - they wipe away years of hard legislative effort, ignore what often amounts to "mountains" of legislative history, ⁽¹⁰⁾ substitute their judgment for that of Congress (prompting Justice Breyer, in one dissent, to protest, "The Congress of the United States is not a lower court" ⁽¹¹⁾), and, because such rulings are based on the Constitution, leave little opportunity for Congress to repair the damage. And while Congress can and does enact "restoration acts" to undo the damage when the Court misconstrues the language and intent of its statutes, as it has had to do repeatedly for Title VII of the Civil Rights Act (prohibiting discrimination in employment on the basis of race, sex, religion or national origin), Title IX of the Higher Education Amendments (prohibiting sex discrimination in education), as well as the laws prohibiting discrimination on the basis of race, national origin, age and disability, these legislative battles - as Members of this Committee know all too well - consume enormous amounts of time and energy that could be better spent on moving forward a positive agenda for the American people.

For all of these reasons, with all that is at stake, the framers of the Constitution wisely lodged the responsibility to appoint federal judges not exclusively with the President, but with the Senate as well. And having had that heavy responsibility conferred on this body, each member of the Senate must carry out his or her "advise and consent" duty in a way that will protect and defend our most precious rights and principles. It is to that subject that I now turn.

II. The Senate's Role in Judicial Confirmations

The "advise and consent" language of the Constitution itself, and the history of the framers' adoption of this formulation, make it clear that the Constitution creates an independent role and set of responsibilities for the Senate in the confirmation process. ⁽¹²⁾ And, as in so many other ways, the framers of the Constitution were right. The judiciary, after all, is independent from the Executive and Legislative branches, and indeed is sometimes called upon to resolve disputes between the two. If the President were given a superior role in judicial appointments, it would upset the neutrality of the judiciary and the system of checks and balances of which it is a part. Unlike Cabinet members or other appointments to the Executive branch, judges do not work for the President or serve at the pleasure of the President only while he (or someday, she) is in office. So while it may be appropriate for Senators to give deference to a President's choices of the personnel who will work for him and implement his policies in the departments and agencies of the federal government - and even then, deference is not a blank check - it would be entirely inappropriate to give deference to the President's selection of judicial candidates.

The late Charles L. Black, Jr., said it well in an article in the Yale Law Journal in 1970. After arguing that a Senator should let the President have wide latitude in filling executive branch posts ("These are his people; they are to work with him"), Professor Black continues:

Just the reverse, just exactly the reverse, is true of the judiciary. The judges are not the President's people. God forbid! They are not to work with him or for him. They are to be as independent of him as they are of the Senate, neither more nor less. ⁽¹³⁾

At bottom, no judicial nominee enjoys a presumption in favor of confirmation. Rather, as numerous legal scholars have shown, it is the nominee who carries the burden of convincing the Senate that he or she should be confirmed, and any doubts should be resolved against confirmation. ⁽¹⁴⁾ Articulating this shared view, Professor Chemerinsky has written:

Under the Constitution there is no reason why a President's nominees for Supreme Court are entitled to any presumption of confirmation. The Constitution simply says that the President shall appoint federal court judges with the advice and consent of the Senate. The Senate is fully entitled to begin with a presumption against the nominee and confirm only if persuaded that the individual is worthy of a lifelong seat on the Supreme Court. ⁽¹⁵⁾

No person has an entitlement to a lifetime seat on the federal bench, and if a nominee cannot clearly satisfy the Senate that he or she meets all of the criteria for confirmation, the American people should not be asked to bear the risk of entrusting that individual with the reigns of judicial power. As Senator Robert Byrd said in the debate over the elevation of Justice Rehnquist to Chief Justice, "The benefit of any doubt should be resolved in favor of the people of the United States." ⁽¹⁶⁾ He elaborated in the debate over the nomination of Clarence Thomas to the Court: "If there is a cloud of doubt, this is the last chance . . . . if there is a doubt, I say resolve it in the interest of our country and its future, and in the interest of the Court." ⁽¹⁷⁾

The history of Supreme Court confirmations reflects the Senate's own understanding of its proper role as an independent - indeed, assertive - partner in the confirmation process. During its first hundred years, between 1789 and 1900, 20 of 85 Supreme Court nominees did not make it to the bench - they were rejected, withdrawn, or not acted upon. ⁽¹⁸⁾ Between 1895 and 1969, during a period in which many Administrations did not use judicial philosophy as a driving selection criterion, just one nominee was rejected. ⁽¹⁹⁾ But in the last 30 years, there has been a return to the original pattern, as five Supreme Court nominations have failed, with an additional two prevailing only after intense battles in the Senate. ⁽²⁰⁾

In light of all that is at stake, and the Senate's constitutional responsibility to determine who will be entrusted with life tenure on the bench, the Senate must scrutinize the fitness of judicial nominees with extraordinary care. In addition to meeting the necessary requirements of honesty, integrity, character, temperament and intellect, to be confirmed to a federal judgeship a nominee should be required to demonstrate a commitment to protecting the rights of ordinary American citizens and the progress that has been made on civil rights and individual liberties, including those core constitutional principles that protect women's legal rights under the Equal Protection Clause and the right to privacy (which includes contraception and abortion) as well as the statutory provisions that protect women's legal rights in such fundamental areas as education, employment, and health and safety. ⁽²¹⁾

There is widespread agreement among scholars and commentators that it is absolutely appropriate, and indeed necessary, for Senators to inquire into, and base their confirmation votes on, judicial nominees' positions and views on these and other substantive areas of law. ⁽²²⁾ Professor Charles Black, reasoning that a judge's judicial work is necessarily "influenced and formed by his whole lifeview, by his economic and political comprehensions, and by his sense, sharp or vague, of where justice lies in respect of the great questions of his time," concludes that a nominee's "policy orientations are material - and . . . can no longer be regarded as immaterial by anybody who wants to be taken seriously, and are certainly not regarded as immaterial by the President - it is just as important that the Senate think them not harmful as that the President think them not harmful." He summarizes:

The Constitution certainly permits, if it does not compel, the taking of a second opinion on this crucial question, from a body just as responsible to the electorate, and just as close to the electorate, as is the President. Is it not wisdom to take that second opinion in all fullness of scope? ⁽²³⁾

Before he was a member of the Court, Chief Justice Rehnquist reprimanded the Senate for its passive role in Supreme Court confirmation proceedings in an article published in Harvard Law Record in 1959. He quoted with approval a speech made by Senator Borah on the Senate floor during the confirmation debate on John J. Parker in which the Senator said:

They (the Supreme Court Justices) pass upon what we do. Therefore, it is exceedingly important that we pass upon them before they decide upon these matters. I say this in great sincerity. We declare a national policy. They reject it. I feel I am well justified in inquiring of men on their way to the Supreme Court something of their views on these questions. ⁽²⁴⁾

This is nothing new; there is ample historical precedent for the Senate to consider ideology, policy views, and judicial philosophy in considering judicial nominations - dating back to George Washington's nomination of John Rutledge as Chief Justice in 1795 and his rejection by the Senate on the basis of his views on the Jay Treaty. ⁽²⁵⁾ When President Wilson nominated Louis Brandeis to the Court, in 1916, strong opposition was expressed based on his history of fighting for the regulation of factories and other progressive economic causes. ⁽²⁶⁾ When President Lyndon Johnson proposed to elevate Justice Abe Fortas to Chief Justice in 1968, his confirmation proceedings focused heavily on his prior rulings (and those of the Warren Court majority) that strengthened the rights of the accused and First Amendment protection of obscenity, and a filibuster blocked his elevation to Chief Justice. ⁽²⁷⁾ It is worth noting that during the Fortas debate, Senator Thurmond made the following remarks:

It is my opinion further, that if the Senate will turn down this nomination we will thus indicate to the President and future Presidents that we recognize our responsibility as Senators. After all, this a dual responsibility. The President merely picks or selects or chooses the individual for a position of this kind and the Senate has the responsibility of probing into his background, into his character and integrity, and into his philosophy, and determining whether or not he is a properly qualified person fill the particular position under consideration at the time. ⁽²⁸⁾

A number of other prominent Senators, of both parties, also have expressed the view that the philosophy of a nominee is an appropriate subject of Senate inquiry and an appropriate basis for a Senator's vote. For instance, Senator Robert Byrd has said,

[I]t is asserted that Senate inquiries into a nominee's fitness for office [are] limited to qualifications, but that other areas of obvious concern, notably his or her personal philosophy or ideology, are off limits to Senate scrutiny. It is a corollary of proponents of this view that the Senate is obligated to place its stamp of approval on a nominee so long as he or she can demonstrate the requisite minimum qualifications for the office in question. All of these assertions have been made time out of memory but, unlike love they do not become better or truer the second or third time around. Indeed, if anything, their repetition offends propriety because they are transparent appeals to political expediency and opportunism and intended to deter the responsible exercise of the advice and consent function. ⁽²⁹⁾

Similarly, Senator Lott has said:

We should look not only at their education, background, and qualifications, but also--particularly when it comes to circuit judges--what is their philosophy with regard to the judiciary and how they may be ruling. We have a legitimate responsibility to ask those questions...again these are not insignificant. These are big-time, lifetime, high paid jobs that are going to affect our lives, and if we do not know who they are, if we do not ask questions, then we will be shirking our responsibilities. ⁽³⁰⁾

Senators therefore have a duty to study a nominee's record and to probe during the confirmation hearing in order to form a judgment about what kind of jurist the nominee will be, based on judicial philosophy and the nominee's views on what Professor Black called "the large issues of the day." This does not mean asking a nominee for his or her personal views on questions of religion or morality or how he or she has voted on ballot measures in the privacy of the voting booth. It does mean, as reflected in past practice, probing into a nominee's views on the correctness of important Supreme Court precedents establishing the right to privacy and its application in Roe v. Wade, or the appropriate standard of scrutiny under the Equal Protection Clause for sex- or race-based classifications, or the scope of Congress' authority under the Commerce Clause or the Fourteenth Amendment to enact civil rights protections. It also means that a nominee's writings or statements should be taken seriously. Confirmation conversions should be viewed with "strict scrutiny."

Carrying out the Senate's responsibility also means that if a nominee has little or no relevant record, he or she bears the burden of assuring the Senate of his or her commitment on key issues and principles. This is particularly important when, as is currently the case, there is a President in office who has made clear that he is looking for judicial nominees of a particular type, in this case those in the mold of Justices Thomas and Scalia. The White House and Justice Department have the opportunity and ability to thoroughly vet potential nominees, before they are sent to the Senate, to ensure that those nominees do indeed fit the President's judicial philosophy requirements. Thus, it is fair to assume that a judicial candidate who appears in his or her confirmation hearing to be a blank slate has revealed him- or herself to Administration vetters to be nothing of the kind. The Senate, then, must satisfy itself as to the nominee's views on critical issues. As one scholar put it:

No judge is a blank slate; every judge has views on important issues before assuming the bench and those preexisting beliefs influence decisions. Whether stated or not, the views still exist. Thus, a judicial candidate's refusal to answer questions does not communicate open-mindedness, just secrecy. ⁽³¹⁾

Nominees who refuse to provide insights into their judicial philosophy have failed to meet their burden.

These points can be illustrated with a brief look at the confirmation hearings of Clarence Thomas to the Supreme Court (before Anita Hill's allegations of sexual harassment surfaced), and specifically what happened when he was asked about his views on Roe v. Wade. Then-Judge Thomas had a prior written record of his views on Roe but attempted to explain them away during his hearing. Asked about his enthusiastic praise of an anti-abortion polemic by the Heritage Foundation's Lewis Lehrman (Justice Thomas had called it "splendid"), he explained that he had merely skimmed the article and was praising it for a different reason. Asked about a report of a White House Working Group on the Family that he had signed, which was highly critical of the Supreme Court's protection of privacy and which had pronounced Roe "fatally flawed," Justice Thomas said that he had signed the report but had never read it. ⁽³²⁾ Other anti-Roe writings he disowned by explaining that he wasn't a Supreme Court Justice when he wrote them, so they had no relevance to what he would do on the Court. ⁽³³⁾

At the same time, Justice Thomas repeatedly insisted that he had no ideological agenda on the right to choose and had a completely open mind. "I have no agenda," "I don't have an ideology to take to the Court," and "I retain an open mind," he said when asked about Roe and the right to choose. ⁽³⁴⁾ Asked by Senator Biden whether the right to privacy protects a woman's right to terminate a pregnancy, Justice Thomas said he could not comment without undermining his impartiality. ⁽³⁵⁾ Others pressed him again and again, and he simply refused to say what he thought. And many recall the exchange with Senator Leahy in which Justice Thomas claimed he had never discussed Roe with anyone, even though the decision came down when he was in law school. ⁽³⁶⁾

In the face of all of these assurances of a completely open mind, a mere eight months after this testimony Justice Thomas he joined Justices Rehnquist, Scalia, and White in a Rehnquist opinion that said, "We believe that Roe was wrongly decided, and that it can and should be overruled consistent with our traditional approach to stare decisis in constitutional cases." Casey at 944 (emphasis added). And he has not wavered from this view. Just last year Justice Thomas wrote that Roe was "grievously wrong." ⁽³⁷⁾

Reporters have subsequently documented that prior to Justice Thomas' confirmation hearing, the White House had made a firm decision that Justice Thomas must disclose nothing harmful at the hearing, and specifically that he must not indicate his opposition to Roe v. Wade because it could jeopardize his confirmation. One of his handlers conceded, on the record, that this was a calculated strategy. ⁽³⁸⁾

I hope that Senators will bear this experience in mind as future nominees, both to the high court and to the lower federal courts, come before the Senate. The stakes are too high - especially on such a closely-divided Supreme Court, and Courts of Appeals that already reflect an imbalance to the right - to allow nominees to walk away from their past or to shield their views and ideology from Senate and public scrutiny.

As Senators, you hold the tremendous power and responsibility to "advise and consent" on federal judicial nominees. How you exercise that power and responsibility - the degree to which you are demanding and thorough in examining the records and views of the nominees that come before you, and the extent to which you are willing to assert your Constitutional prerogative to say "no" when appropriate - will have a tremendous impact on the lives of American citizens for many years to come.

1. I would also like to acknowledge the assistance of two Center legal fellows, Nicole Deddens and Susannah Voigt, in the preparation of this testimony.

2. While 54,088 cases were acted on in 1999 by the 12 Courts of Appeals, only 83 cases were argued before the Supreme Court in 1999. See, Supreme Court of the United States, 2000 Year End Report on the Federal Judiciary, <http://www.supremecourtus.gov/publicinfo/year-end/2000year-endreport.html>; Judicial Business of the United States Courts: 2000 Annual Report of the Director, <http://www.uscourts.gov/judbus2000/contents.html>; See also, Edward A. Purcell, Jr. Reconsidering the Frankfurtian Paradigm: Reflections on Histories of Lower Federal Courts, 24 L. & Soc. Inquiry 679, 722 (1999) (citing statistics that suggest that over 95% of decisions by the court of appeals are final); Ashutosh Bhagwat, Separate But Equal? The Supreme Court, The Lower Federal Courts, and the Nature of the "Judicial Power," 80 B.U.L.Rev. 967, 984-5 (2000) (demonstrating that as a practical matter federal courts are not and have not been under the close supervision of the Supreme Court since "the threat of review by the Supreme Court is extremely limited, given practically and voluntarily adopted constraints on the Court's docket, and the huge volume of federal litigation").

3. See, e.g., Arthur D. Hellman, The Shrunken Docket of the Rehnquist Court, 1996 S. Ct. Rev. 403; David M. O'Brien, Join-3 Votes, the Rule of Four, the Cert. Pool, and the Supreme Court's Shrinking Plenary Docket, 13 J.L. & Pol. 779, 807 (1997); Administrative Office of the U.S. Courts, Judicial Business of the United States 71 (2001).

4. See, e.g., Hopwood v. State of Texas, 78 F.3d. 932 (1996), in which a panel of the Fifth Circuit, explicitly declining to follow the Supreme Court's ruling in Regents of Univ. of Cal. v. Bakke, 438 .S. 265 (1978), held that race-based affirmative action can never be used to further diversity in institutions of higher education, id. at 944; United States v. Dickerson,, 166 F.3d 667, 692 (4th Cir. 1999), rev'd 120 S.Ct. 2326 (2000) where the appeals court held that, contrary to 30 years of precedent, the Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), was not binding in federal courts. The Supreme Court subsequently reversed this decision by a 7-2 vote. Dickerson v. United States, 120 S.Ct. 2326 (2000).

5. See e.g., Brooke A Masters, Battle Brewing Over 4^th Circuit Nominees, The Washington Post, May 5, 2001, A1 ("Considered the nation's most conservative appeals court, the 4^th Circuit has drawn national attention for its decisions limiting federal power, upholding death sentences and narrowing the rights of citizens to file environmental and civil rights law suits."); Associated Press, Helms Set to Back Nominee, Richmond Times-Dispatch, May 3, 2001, B4 (noting that the 4^th Circuit is "the nation's most conservative appeals court").

6. U.S. v. Morrison, 529 U.S. 598 (2000).

7. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).

8. Kimel v. Fla. Bd. of Regents, 528 U.S. 61 (2000).

9. U.S. v. Lopez, 514 U.S. 549 (1995).

10. U.S. v. Morrison, 529 U.S. 598, at 628 (2000) (Souter, J., dissenting).

11. Bd. of Trustees of Univ. of Ala. v. Garrett, 121 S.Ct. 955, at 973 (2001) (Breyer, J., dissenting).

12. See e.g., Donald E. Lively, The Supreme Court Appointment Process: In Search of Constitutional Roles and Responsibilities, 59 S.Cal. L. Rev. 551, 552-556 (1986); Henry Paul Monaghan, The Confirmation Process: Law or Politics?, 101 Harv. L. Rev. 1202, 1204 (1988); Gary J. Simson, Thomas's Supreme Unfitness--A Letter to the Senate on Advise and Consent, 78 Cornell L. Rev. 619, 648-49 (1993); David A. Strauss & Cass R. Sunstein, The Senate, The Constitution, and the Confirmation Process, 101 Yale L.J. 1491,1494-1501(1992). See generally, Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657 (1970); Richard D. Freer, Advice? Consent? Senatorial Immaturity and the Judicial Selection Process, 101 W. Va. L. Rev. 495; Albert P. Melone, The Senate's Confirmation Role in Supreme Court Nominations and the Politics of Ideology Versus Impartiality, 75 Judicature 68 (1991); William G. Ross, The Functions, Roles, and Duties of the Senate in the Supreme Court Appointment Process, 28 William & Mary Law Review 633 (1987); .

13. Charles Black, A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657, at 660 (1970) (emphasis in original).

14. See e.g., Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657 (1970); Erwin Chemerinsky, October Tragedy, 65 S. Cal. L. Rev. 1497 (1992); Henry P. Monaghan, The Confirmation Process: Law or Politics?, 101 Harv. L. Rev. 1202 (1988); David A. Strauss & Cass R. Sunstein, The Senate, The Constitution, and the Confirmation Process, 101 Yale L.J. 1491 (1992).

15. Erwin Chemerinsky, October Tragedy, 65 S. Cal. L. Rev. 1497, 1509 (1992)

16. 132 Cong. Rec. S12,784 (1986) (statement of Senator Byrd).

17. 137 Cong. Rec. S14,633-44 (1991) (statement of Senator Byrd).

18. John Massaro, Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations ix-x (1990)

19. See id.; Richard D. Freer, Advice? Consent? Senatorial Immaturity and the Judicial Selection Process, 101 W. Va. L. Rev. 495, 498 (noting that President Hoover's 1930 nomination of Chief Judge John J. Parker of the Fourth Circuit was the only Supreme Court nomination rejected by the Senate between 1896 and 1969).

20. Richard D. Freer, Advice? Consent? Senatorial Immaturity and the Judicial Selection Process, 101 W. Va. L. Rev. 495, 498.

21. As articulated by some 200 law professors in a May 8, 2001 letter to the Senate, attached hereto, the Senate should evaluate every judicial nominee to ensure that he or she is found to: have an exemplary record in the law; bring an open mind to decision-making, with an understanding of the real-world consequences of their decisions; demonstrate a commitment to protecting the rights of ordinary Americans and not place the interests of the powerful over those of individual citizens; have fulfilled the professional obligation to work on behalf of the disadvantaged; have a record of commitment to the progress made on civil rights, women's rights and individual liberties; and manifest a respect for the constitutional role Congress plays in promoting these rights and health and safety protections, and ensuring recourse when these rights are breached.

22. See e.g., Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657 (1970); Erwin Chemerinsky, October Tragedy, 65 S. Cal. L. Rev. 1497 (1992); James E. Gauch, Comment, The Intended Role of the Senate in Supreme Court Appointments, 56 U. Chi. L. Rev. 337 (1989); Donald E. Lively, The Supreme Court Appointment Process: In Search of Constitutional Roles and Responsibilities, 59 S. Cal. L. Rev. 551 (1986); Albert P. Melone, The Senate's Confirmation Role in Supreme Court Nominations and the Politics of Ideology Versus Impartiality, 75 Judicature 68 (1991); William Rehnquist, The Making of a Supreme Court Justice, Harv. L. Rec., Oct. 8, 1959; William G. Ross, The Functions, Roles, and Duties of the Senate in the Supreme Court Appointment Process, 28 William & Mary Law Review 633 (1987); David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 Yale L.J. 1491 (1992).

23. Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657, 658 (1970).

24. William Rehnquist, The Making of a Supreme Court Justice, Harv. L. Rec., 7-10 (Oct. 8, 1959).

25. James E. Gauch, Comment, The Intended Role of the Senate in Supreme Court Appointments, 56 U. Chi. L. Rev. 337, 358-363 (1989).

26. Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 Harv. L. Rev. 1146, 1151-1152.

27. Robert A. Katzman, Congress and the Courts 24-25 (1997). Questions about Fortas' financial dealings, which led to his resignation from the Court, were not raised until later, in 1969. Henry Abraham, Justice Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton 219 (1999)

28. 114 Cong. Rec. 28774 (1968) (statement of Sen. Thurmond) (emphasis added).

29. 133 Cong.Rec. S10,829-01 (daily ed. July 29,1987) (statement of Sen. Byrd).

30. 142 Cong. Rec. S9,418 (daily ed. Aug. 1, 1996) (statement of Sen. Lott).

31. Erwin Chemerinsky, October Tragedy, 65 S. Cal. L. Rev. 1497, 1506 (1992).

32. Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings before the Senate Comm. on the Judiciary, 102^nd Cong. 129-30 (1991) [hereinafter Thomas Hearings].

33. Thomas Hearings at 231-2, 264-67.

34. Thomas Hearings at 180, 296

35. Thomas Hearings at 127.

36. Thomas Hearings at 222-23.

37. Stenberg v. Carhart, 530 U.S. 914, 980 (2000) (Thomas, J., dissenting).

38. Jane Mayer & Jill Abramson, Strange Justice: The Selling of Clarence Thomas 210 (1994).