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Document Type

Article

Publication Date

2019

Publication Citation

94 Indiana Law Journal Supplement 1 (2019)

Abstract

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing narrative—with tensions reconciled, discrepancies explained, and the presentation of a coherent, if complex, portrait of the nominee—but rather several competing biographies, many of which directly war with each other.

For Bork, those competing biographies included a biography by Senator Gordon Humphrey of New Hampshire, in which Bork was hailed as a brilliant constitutional law scholar, a dedicated former Solicitor General, a respected judge, a real “lawyer’s lawyer”—indeed the “best qualified [Supreme Court] nominee in 50 years.” But another Bork biography communicated a much different message: Massachusetts Senator Ted Kennedy characterized Bork as someone who was “hostile to the rule of law,” “publicly itching to overrule” established Supreme Court precedent, and antagonistic to the rights of women and racial minorities. Senator Howard Metzenbaum of Ohio created still another biography. In this telling, Bork was someone who “could weaken, literally with a few years, fundamental constitutional freedoms which the Supreme Court has protected throughout its history.”

By the time this biography by committee had been assembled, the portraits of Bork contradicted each other over and over again. One made Bork out to be the poster boy for judicial restraint; another made him out to be the poster boy for judicial activism. At a certain moment, he was a kind, compassionate man with a wonderful sense of humor; at another, he was a heartless ideologue with attitudes that were at once racist and sexist. Listen for a little while and you’d hear Bork portrayed as a selfless public servant; keep listening and you’d learn he sat in the pocket of big business.

In other words, Bork’s biography by committee contained two stories: one that made him out to be essentially the best of all judges, and another that made him out to be essentially the worst of all judges. All this of course unfolded before Bork was even allowed to respond with his own autobiographical retort. So, it is no wonder that, while sitting in his nominee chair listening to these competing biographies, Bork felt as if he were listening to the description of “not one person . . . but several,” as he later recounted in his post-confirmation memoir The Tempting of America: The Political Seduction of the Law.

This experience has repeated itself in virtually every Supreme Court confirmation hearing since confirmation hearings became a regular part of the nomination process in 1955. There is a lot to regret about this. Partisan bickering doesn’t need any additional forums nor is the country really at a loss for grandstanding. At the same time, however, the hearings do offer a rare opportunity to study how this very public stage serves as an important site for storytelling about America’s highest court, about the people we deem fit to sit there, and about justice more generally.

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