The Confirmation Mess

THE OPEN MIND
Host: Richard D. Heffner
Guest: Stephen L. Carter
Title: “The Confirmation Mess”
VTR: 5/20/94

I’m Richard Heffner, your host on The Open Mind. And my guest today is Yale Law Professor Stephen L. Carter, the author of Basic Books’ timely and provocative new volume The Confirmation Mess, an astute analysis of how to clean up a distressing federal appointments process that has been labeled “confirmation hell.”

Incidentally, the last time today’s guest was here on The Open Mind, the President of the United States had just publicly proclaimed, “I bought a book on vacation called The Culture of Disbelief by Stephen Carter, and I would urge you all to read it.”

But my most recent Open Mind guest, Judge Steven Breyer, will likely not need to urge Professor Carter’s newest volume upon us, because at least as we record this program on May 20th, his confirmation hearings are not expected to be “a mess.” But what about Robert Bork and Clarence Thomas and many others? Not all nominees have been “Borked,” to be sure. But recent confirmation hearings have too often tended to be messy. And one turns to Stephen Carter for an insight into what is to be done.

Professor Carter begins his challenging volume by flatly noting about these vicious attacks and counterattacks that have come to characterize too many confirmation hearings, “Nobody is interested in playing by a fair set of rules that supersede the cause of the moment. All that seems to matter is the end result. If the demonized nominee loses, all that has gone before is justified.” He argues, “This book is, first of all, about decency. It is about honesty.” And I would like to ask Stephen Carter just what he means by that. What do you mean about decency and honesty?

CARTER: What’s happened in our confirmation battles today is that in order to focus media attention, public attention, frankly, the Senate’s attention on the downside of a nominee, on argument against a nominee, what the opponents have to do, or at least what they choose to do, is to find little snippets of the individual’s record, blow them far out of proportion – sometimes it has to be said, lie about them – all as a way of focusing attention. We have, nowadays, nearly 1,000 positions in the executive branch that require Senate confirmation. Quite apart from our nine Supreme Court justices, we have hundreds and hundreds of lower court judges being confirmed as well. That’s many too many people for the Senate to give each oedf them very close scrutiny. How to decide which ones to give close scrutiny? Well, the ones that there’s some brouhaha about. How to create a brouhaha? Tell a lie. The bigger the better. Turn someone into a monster. The more demonized, the better. That’s how you do it. And too often today that’s how the game is played.

HEFFNER: Well, your book seems to say, and you seem to be saying, that these are non-confirmation hearings rather than confirmation hearings.

CARTER: What’s interesting is that we tend to focus on a nominee’s disqualifications instead of a nominee’s qualifications. We don’t really ask: Is this the person what has the right background? Is this person smart enough? Does this person have the right resume? We ask: Is there a scandal in this person’s background? A friend of mine in the federal government told me a story which I recount in the book. Years ago, during the Ragan administration, there was a nominee for a particular post. And the senators on the committee felt quite strongly this person lack the minimum qualifications for the job. The Senate staffs then called all over Washington asking, “Is there any scandal in this fellow’s background?” The senators did not want to place their opposition on the ground that the individual was unqualified. They wanted to find something that would play better in the media. A scandal. No scandal was found, and the gentleman was confirmed.

HEFFNER: Now, is this a function of what Charlie Chaplin would have called “Modern Times?”

CARTER: (Laughter) Well, only in part. That is, confirmation fights have been rocky all through our history. There’s no question. But what’s happened in the last couple of decades are two things which I think are not unrelated. One is that through the magic of television and the sound byte, and the cameras in the hearing room, the public has been invited in in a way that wasn’t true before. Now, in a democracy we might celebrate that, except that what the public has been invited in to see is a little series of sound bytes on the evening news where opponents and supporters both get 10 or 15 or 20 seconds to explain some complex position of the nominee. That’s the sort of thing that did in, in my judgment, both Robert Bork and Loni Gueners. That it’s much easier to demonize someone in 20 seconds than to defend someone in 20 seconds.

But the second phenomenon that’s happened, of course, is that the Supreme Court plays a much bigger, more vital role in our politics than was true in the past. More is seen to be at stake each time a Supreme Court vacancy occurs. That’s why those fights often get particularly bloody. These constituents of both sides of the major issue, abortion, the death penalty, Affirmative Action, what have you, see a vacancy as a way of shifting national policy or preserving national policy if only they can set things up so that their side is in the White House when a vacancy occurs.

HEFFNER: Now, you’re not saying they’re wrong in their perception, are you? You’re saying, indeed, they seem to be quite correct.

CARTER: The Supreme Court does indeed hold that kind of space in our national life. And perhaps that’s a good thing. But if it’s a good thing, one has to recognize what comes along with it. The reason the Bork hearings were so contentious, in part, was that so much was seen to be at stake. The opponents shamelessly exaggerated his record, took small bits and pieces out of context to make him seem evil, but they did so in the service of the cause of preserving a particular set of decisions that they thought were under threat. Now, my judgment is that that cause, holy in some sense though it may be, does not adequately justify the kind of vicious and personal campaign that was run. But what some opponents tell me when I talk to them is, “If you don’t get vicious, if you don’t get dirty, the media won’t pay any attention, and you can’t run any campaign at all.”

HEFFNER: Is it your assumption that no cause justifies that kind of campaign?

CARTER: Well, I don’t pretend to be that kind of precious moral absolutist who would say, “Never.” What I would say, though, is that I worry deeply that we’ve reached a point where we simply assume this is how business is to be conducted. Opponents of nominations today are very sophisticated. They use focus groups to figure out how to describe someone’s record, to see whether they can make the person seem scary. And, for example, in the Bork fight, whichever way of describing his record seemed scariest to the focus groups was the one they went with. Intelligent advertising in the 20-second sound bytes and so on.

You know, it also was true in the Loni Guenere case, to take one that didn’t involve the Supreme Court but was equally vicious, that what the opponents were looking for was the right spin to make her seem as scary as possible. You’ve got to scare the public, which you can only do by getting the media’s attention. If you can’t scare the public, you can’t scare the Senate, because there are far too many people being reviewed for confirmation for the Senate to pay attention unless constituents are raising a brouhaha about it.

HEFFNER: You know, one of the most interesting things in the book, you said, and with considerable certainty, “But had Thurgood Marshall been younger, had he been nominated to the Supreme Court in the year that he died, he might never have been confirmed.”

CARTER: Well, you know, I think that’s right. I was a law clerk for Thurgood Marshall. I loved that old man dearly. I think he was one of the great figures in American legal history. But if we used the standards that we use today, I’m not sure how he could have been confirmed. Just think of a couple of things. Thurgood Marshall sat in his confirmation hearings in 1967, and day after day refused to answer questions about the Supreme Court’s controversial cases. He said, almost in so many words, that it was none of the Senate’s business. Today, when a nominee does that, we say this person is being evasive, this person won’t give us the information we need. Historical memories are so short. That kind of outrage was directed against Thurgood Marshall for refusing to answer, but it was directed only by the Southern segregationists. The liberals and moderates and most of the media defended Marshall’s right, indeed his responsibility, to refuse to answer those questions.

One of the things that happens today, when we spend so much time asking the nominees in front of the television cameras on national television how they feel about this or that controversial precedent, is we forget how short and dishonorable a pedigree that practice had. That practice of making the nominees sit there and talk about the Supreme Court’s work did not begin until 1955 with the nomination of John Marshall Harlan by Dwight Eisenhower, and it is no coincidence that John Marshall Harlan was the first justice nominated after the Supreme Court outlawed racial segregation in Brown against Board of Education. A notion that it is the responsibility of the nominee to come before the Senate and talk about judicial philosophy was an invention of the segregationists as part of their effort to overturn Brown.

HEFFNER: Perhaps an invention of the segregationists, but certainly the practice is so widespread now.

CARTER: Well, it is. Nowadays we act as though it’s part of our national heritage, perhaps written somewhere in the Constitution.

HEFFNER: You know, you, in a sense, you seem – oh, not to justify the whole ball of wax – but you seem to be, in The Confirmation Mess, somewhat sympathetic with the notion that Supreme Court does play a significant enough role in our lives that indeed it is not unfair game for us to ask these questions.

CARTER: Well, I admit to being genuinely torn on the issue. On the one hand, as a law professor and as a citizen, I respect the role the Supreme Court plays. The protection of constitutional rights, the review of the federal legislation, is a tremendously important part of our national life. There’s no question about that. On the other hand, I do see the downside. The downside is that the rights, when they become so plentiful, also become kind of political largesse. So that presidents run for office on platforms that promise, often explicitly, “If you elect me, we will change the Supreme Court and the votes will go his way instead of that way.” I’m very old-fashioned. I still teach my students about judicial dependence, and I still have this ideal of a court made up of thoughtful, reflective people for whom these issues are difficult, rather than a court made up of individuals who are placed on that bench precisely because they’ve already made up their minds.

HEFFNER: But you say that this new phase of congressional/senatorial confirmation proceedings stemmed, appropriately enough, or understandably enough, after the Brown versus Board of Education. Would you have it otherwise?

CARTER: I would have it otherwise. That is, one thing that’s interesting is that in this new phase we do have presidents campaigning on the basis of how their nominees in effect are going to vote, and the senators do quiz the nominees about this in their public hearings. But by and large, the nominees don’t answer. Now, their refusals to answer are rarely stubborn. They rarely just say, “No.” They’re often very elegant. The dance around answering. There always comes a moment, of course, when a nominee feels cornered. When a senator says, “Judge Ginsberg,” or, “Judge Kennedy,” or “Judge Breyer, tell me how you feel about Roe versus Wade. Tell me how you feel about this particular free-speech issue, or about the death penalty.” And there’s always a point at which the nominee finally says what John Marshall Harlan said in 1955: “Senator, I can’t discuss that with you. It’s a matter of propriety.” Senators often get quite angry. Political commentators often accuse the nominees of being evasive. But it is a fact, and I think a healthy one, that the Senate has never rejected a nominee on the ground that the nominee has failed to answer its questions.

HEFFNER: Suppose in 1954 we had had a reprise of Plessy versus Ferguson. Suppose in 1954 you needed to have, to bring about Brown versus Board of Education, a different kind of court. Would you then have been more sympathetic to the presidential candidate who would have said, “Elect me and I’m going to make certain that there will be a Brown versus Board of Education decision,” and all that followed in the Senate and confirmation hearings?

CARTER: The trouble is you can’t really look at Brown in isolation. Brown was the outcome of a 20- to 30-year litigation strategy that slowly chipped away at Plessy versus Ferguson, at the rule of separate but equal. What’s interesting about the chipping away is that it was premised on the notion that fair-minded people would finally come to Brown. The reason I say that is, one can talk about having a litmus test, but the fact is in those days we didn’t have one. That is that no one, not a single individual on the court that decided Brown, had been placed there because of his views about segregation. And if we had had these litmus tests, the only way nominees could have gotten through in the ’30’s and ’40’s was to pledge to maintain segregation. We have this fantasy in America in the 1990’s that through the 20th Century Americans were always up in arms demanding an end to segregation, and only a few unreconstructed Southerners stood in their way. But that’s just not true. That’s just not true. Most Americans didn’t care a whit. And so if you’d had litmus tests, the only people who would have cared would have been the segregationists. And they would have kept off the court, I think successfully, at least in the 1940’s, anyone who they thought would threaten to change segregation.

HEFFNER: I understand perfectly well what you’re saying, but it means that I didn’t ask the right question. Because what I’m really trying to get at is the question of whether, if an issue that means an enormous amount to you as an individual, as a scholar, were to be a litmus test, would you be more accepting of this?

CARTER: The trouble is there are a lot of issues that mean a great deal to me, an enormous amount to me, which I would not want to see the Senate demanding that nominees commit themselves on before they can be confirmed. Suppose Brown had gone the other way. Suppose that the forces of goodness, the forces of right, had lost in Brown. What would have happened? More years of litigation, more years of struggles. A much larger social movement going on than the movement in the courts. In the end, I think we would have ended up in the same place. It might have taken a little longer. But if the Supreme Court had gone the other way, the battle would simply have switched to other fronts. That seems to me to be social change at its best. You work on many fronts at the same time. What worries me today about some people’s attitude about the Supreme Court is that social change is very court-focused. You win or lose in the court alone. And that creates an image, I think, for the American people who have a kind of personal political helplessness. You can’t do anything about these problems until you know what the court has done. And if you don’t win in the court, then you change the court and try again. So to me court centered that way in fighting for social change seems to me a great mistake.

HEFFNER: I don’t mean to ask this, the question I’m going to ask you now, in terms of assuming if you titled your book The Confirmation Mess that you have some magical solution that will clean up the mess. But what will you do to modify the present confirmation proceedings if not at least to change the nature and the values of the Americans who sit in the Senate of the United States?

CARTER: Well, let me mention three things that I think would go a long way.

The first is, though I hate to be a media basher, I know I bash the media a little bit in this book …

HEFFNER: Please join me. I think that’s wonderful.

CARTER: (Laughter) I would like journalists to be a bit more careful and thoughtful in what they say about the various attacks on nominees. There was an article in Columbia Journalism Review a few months ago that analyzed the press coverage of the Loni Guenere case. And the reporter who wrote it interveiwed a number of journalists who had worked on the story. One of the things she discovered was that quite a number of these journalists had never read any of Loni Guenere’s work. When asked why they hadn’t read it, they said, “Well, we’re not writing about her work; we’re writing about the controversy.” My judgment is that is lazy and irresponsible. It is utterly irresponsible, it seems to me, to write about a controversy over the written word without taking the time to read and make your own judgment about the written word. Otherwise you can’t ask follow-up questions. You ask an opponent of Loni Guenere, “What do you object to?” And the opponent says, “She said this,” and quotes a sentence. If you haven’t read it, you can’t say, “What about this other sentence three lines down? Does that change your view?” You can’t do it.

So the first point is that it seems to me that the media, journalists, have to take much more seriously their responsibility for informing themselves. You can’t inform the American people if all you’re reporting are both sides’ sound bytes.

The second point is, I wish presidents would stop running for office on the ground, among others, “If you vote for me, the Supreme Court is yours.” Because the Supreme Court isn’t theirs; the Supreme Court is an independent branch of the federal government, and should not be deemed to be the possession of the political movement. When you treat it like a possession of the political movement, you raise the stakes, and naturally there’ll be a lot of blood on the floor if people see hard-won victories threatened, or people see a chance to overcome a past defeat.
But the third thing, and in a way the most difficult to imagine achieving, is that when we’re nominating Supreme Court justices, and other officials, let’s try to think about balance. Let’s not ask simply, “Has this person ever sinned? And should this sin be disqualifying?” Let’s say, “All right. All human beings make mistakes. All human beings do bad things. All scholars write articles they wish they hadn’t written. Can we balance those aspects that we object to in this person’s record against the good qualities that this person is likely to bring to public service?” If we can try to strike that balance to accept human nature as complex instead of the simple-minded notion: somebody wrote this line and is therefore disqualified, if we can attain that central balance, I think we can go a long way toward cleaning up our confirmation mess.

HEFFNER: You know, three approaches that you mention. Each and every one of them has to do with, “Gosh, I wish these people could be nicer people, and better people, and more rational people.” Now, you’re not going to be content with that, are you? You’re not going to put your bets for the future upon the hope that journalists will clean up their act.

CARTER: No. And there are structural things one could do. Although some of them require constitutional amendment, and would be hard to do. Especially with regard to the Supreme Court. One of my favorites is, I think we would be much better served if Supreme Court justices had to get a two-thirds majority in order to be confirmed. That, I think, would encourage presidents to limit their selection to very widely respected judges and lawyers, and to stay away from nominees who have left a deep trail of enemies because they’re deeply committed political ideologues. Now, if you had had the two-thirds requirement, you couldn’t have Clarence Thomas on the court, it’s true, and Robert Bork probably would not have been nominated. I didn’t like the way Robert Bork was treated, but if he hadn’t gone through that and we had, in the first place, a nominee who seemed to have less strong ideological commitments, who would say the republic would not have been better served?

HEFFNER: But you know, that cuts both ways. Our mutual friend, Thurgood Marshall, though the nominating, though the final confirmation vote was overwhelming, had there been a two-thirds requirement, perhaps the Southern segregationists would have managed, would have fought still harder and managed to have defeated him.

CARTER: That’s possible. That’s a risk. I would like to think that quality will out and that that would not have happened. I think if you look at recent history, I think President Clinton has been very sensible, although he has been criticized for it.

HEFFNER: Indeed.

CARTER: But he’s been very sensible in his two nominations so far, with Ruth Bader Ginsberg and with Stephen Breyer, in selecting people who are widely and deeply respected across the political spectrum for their legal acumen and for their ability as judges.

Now, some people say that if you had a two-thirds requirement, that would just encourage the opponents to work harder, it would get rid of some controversial appointments, but would it really encourage opponents to work harder? It would depend. If it encouraged presidents to be more thoughtful about their nominees, the hard work that the opponents might do could therefore go for naught.

HEFFNER: But, Professor Carter, in our society today, who in the world could get one-third plus? Seriously. Not opposing them. Who in the world can be that beloved and that respected?

CARTER: Well, Ruth Bader Ginsberg was confirmed by a vote of 96 to three.

HEFFNER: Yeah, but we’re talking about a situation in which you don’t have to have that kind of vote. You have to have simply the majority. And I just wonder whether, as you suggested a moment ago, whether the battles wouldn’t be even greater.

CARTER: It’s possible. That could be true. And indeed there is no system that’s so good that people who are determined to act in an indecent fashion can’t spoil it. But it does seem to me that whether structural change is the answer or not, that if we don’t do something, we’re going to continue a trend that has two very bad effects. One is that it leaves a lot of blood on the floor and it rewards people for demonizing other people. The other is that I think it makes a lot of people very cynical about public life, and perhaps quite reluctant to enter public service. I’ve known quite a number of very highly-qualified individuals who have decided to turn down presidential appointments because there’s some small fact in their background that they fear that if this came out, the way the media treats these things, goodness knows how I’d look, goodness knows what my children would think. It’s just not worth the risk. I emphasize these are small things. These are things that on the surface might not look to the individual disqualifying, but I’m sure that’s what Zoe Baird thought about the Social Security violation.

HEFFNER: Now, we have a minute or so left. What about changes at the level of the Senate and of our friends in the judiciary committee?

CARTER: There are some things I think the Senate could do differently and perhaps a little better. I think the Senate needs to be more assertive, especially regarding Supreme Court nominees, not seeing its role as simply responding to the White House. Many people have suggested over the years that the Senate ought to press the president to consult in advance on judicial nominations, at least on Supreme Court nominations. I think that would be a very good thing. The Senate could say to the president, “We won’t confirm anyone not on this list.” And if the Senate was willing to stick to that approach, I think that could in the end be very healthy, with a stronger kind of healthy balance between president and Senate.

HEFFNER: That’s an approach that’s been taken in a number of states and other communities.

CARTER: Well, in a number of different ways. A lot of states have pursued nomination commissions and so on. I’m not quite proposing that. But I do think that we could only enhance, we could only enhance the proper balance and the respect for the Supreme Court if we came to recognize that the Senate and the president are co-equal partners in the venture of putting individuals in the Supreme Court. It’s not just a presidential responsibility.

HEFFNER: Stephen Carter, thank you for joining me today. I don’t think it has quite the moxy as when the President of the United States said, “Please read Carter’s latest book,” but The Confirmation Mess is an extraordinary volume. I hope everyone does read it. And thank you for joining me again on The Open Mind.

CARTER: Thank you for inviting me again.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about our program, today, please write The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts send $2.00 in check or money order.

Meanwhile, as an old friend used to say, “Good night and good luck.”