It is long past time for Supreme Court nominations to be considered with seriousness and proportion, not as pitched battles on the plains of political Armageddon.
Archives at the Ronald Reagan Presidential Library in California provide a lesson in how nominations once, appropriately, were handled. It particularly shows how liberal Democrats once behaved reasonably, rather than like the character assassins some leftists have become.
On July 7, 1981, Reagan nominated Arizona state appeals court judge Sandra Day O’Connor to the nation’s highest court. That very day, liberal stalwart Rep. Morris Udall, D-Ariz., pronounced himself “really quite pleased.” Even more liberal Sen. Ted Kennedy, D-Mass., said “President Reagan should be commended for nominating a woman.” Feminist leaders also chimed in with immediate support for Reagan fulfilling a campaign pledge to name the first-ever female high court nominee.
To be sure, there was serious carping from the traditionalist Right, because when O’Connor served in the Arizona Legislature, she four times advanced policies the Right considered to be abortion-enabling. Nonetheless, Reagan said O’Connor herself had told him she found abortion “personally abhorrent” – a sign, for Democrats wanting to defend the Roe v. Wade “abortion rights” precedent, that O’Connor might not be with them on what is perennially the biggest “hot button” court issue.
[Also read: Judge Brett Kavanaugh’s opponents are getting desperate and nonsensical]
Moreover, O’Connor had been Senate Republican Leader in Arizona, an obviously partisan job in a state where Republicans were famously conservative. Her foremost advocate was hardline conservative Sen. Barry Goldwater, R-Ariz., and she was known to be a longtime friend and ally of Supreme Court Justice William Rehnquist (also of Arizona), who then was the Supreme Court’s most rock-ribbed conservative.
And while Democrats were pleased to see a woman as nominee, O’Connor was seen as probably the most conservative of the women assumed to be on Reagan’s (privately held) short list.
By the standards of today’s Senate Democratic leadership, all those elements of O’Connor’s biography would have been cause for apoplexy.
But the Democrats raised nary of peep of opposition.
Today, Senate Minority Leader Chuck Schumer, D-N.Y., says a nominee “has an obligation – a serious and solemn obligation – to divulge his personal views” on ”legal issues” involving healthcare, “corporate interests,” and Roe v. Wade. In 1981, Democrats barely pressed her. In fact, it was young White House lawyers and O’Connor herself, not Democrats, who worried that the questions might be tougher than they turned out to be.
On Aug. 14, 1981, J. Michael Luttig (later a judge on the U.S. Fourth Circuit Court of Appeals and a short-lister for the Supreme Court in 2005) wrote a memo to White House Counsel Fred Fielding expressing only a mild concern: “Judge O’Connor has mentioned in passing that she wished she had more of an idea of specific questions that are likely to be directed to her at the hearings. I am confident that someone is handling it… but I thought I should mention it.”
On Sept. 9, 1981, Luttig’s 26-year-old colleague John Roberts (today, of course, the Chief Justice) wrote O’Connor a memo advising her to ignore a Texas law professor’s argument that specific court cases should be addressed: “The proposition that the only way Senators can ascertain a nominee’s views is through questions on specific cases should be rejected … [and is] absurd. [If such a question is asked and answered,] the appearance of impropriety remains.”
The internal debate was obviously considered almost ephemera by the senators. Biden, then the ranking Democrat, reserved the right to ask about general philosophical approaches to the law, but, in his opening statement, said this: “We are not attempting to determine whether or not the nominee agrees with all of us on each and every pressing social or legal issue of the day. Indeed, if that were the test no one would ever pass by this committee, much less the full Senate.”
Kennedy’s opening statement was even more comforting to O’Connor. Before a single question had been asked, he said; “I am proud to join in the widespread acclaim for your nomination, and look forward to your confirmation and to your service on the Court.”
O’Connor was confirmed unanimously, including by pro-life senators who had initially complained. What senators understood was that different facts and circumstances, and even the intellectual conclusions of a justice, may change over time, and that predicting somebody’s jurisprudence years in the future is a fool’s game.
Indeed, such was the case with O’Connor, whose record ended up pleasing liberals more often the longer she stayed on the court – including on abortion, regarding which her first judicial opinion (the 1982 Akron case) pleased the traditionalist Right, but later decisions (Planned Parenthood v. Casey) pleased the Bidens and Kennedys of the world.
It was conservative Sen. Strom Thurmond, R-S.C., who proved the most prescient. As reported by a White House aide accompanying O’Connor on her first courtesy calls to Senate offices, “Thurmond raised the question of O’Connor being ‘alright as long as Reagan is in,’ implying she would vote liberal afterwards.”
These realities make today’s sturm und drang about “specific views” nearly absurd. Jurisprudence develops case by case, over time. In its role of “advice and consent,” the Senate should return to the basics cited by Biden in another part of his 1981 opening statement:
Absent known statements, actions, beliefs, or legal opinions truly repugnant or absurd (not just outside some partisan definition of “mainstream”), those Biden criteria still should be the Senate’s only real concerns today. As for the ideological assaults, they should stop. Period.
Quin Hillyer (@QuinHillyer) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a former associate editorial page editor for the Washington Examiner, and is the author of “The Accidental Prophet” trilogy of recently published satirical, literary novels.
