How Do Sotomayor's Hearings Compare to the Other Supreme Court Justices?

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Holly Bailey

Katie Connolly

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Katie Connolly

After a relatively uneventful first day of hearings, most court-watchers anticipate that Sonia Sotomayor will cruise smoothly to the Senate Floor and on to the bench. If that happens, how will her confirmation compare with her soon-to-be peers? Certainly, it will be a marked contrast to Clarence Thomas's hearings, which were arguably the most tawdry in recent Supreme Court history. When President George H. W. Bush nominated Thomas in 1991, he was under pressure from the right to appoint a reliably conservative justice. His first appointment, the recently retired Justice Souter, had turned out to be much more moderate than expected. Thomas' nomination was met with immediate suspicion on the left: He was opposed to affirmative action but Bush had selected him because he was black, a dynamic that disquieted liberals. Thomas was attacked as inexperienced, having authored no books or opinions of note.

Early in his confirmation hearings Thomas won some empathy with his stories of growing up the impoverished South. But his short, non-committal answers frustrated senators. Thomas had learned from Robert Bork, Reagan's failed nominee whose expansive soliloquys on his legal philosophy ended up causing him problems. But Thomas went too far in the opposite direction and compounded perceptions that he hadn't thought deeply enough about the law. Then came the now infamous seven-hour testimony of Anita Hill, a young lawyer who had worked for Thomas and alleged he had sexually harassed her. Hill's testimony was replete with strange and unflattering anecdotes about Thomas's tasteless jokes and appetite for pornography. (It's unlikely that "Long Dong Silver" has appeared in a Senate transcript since.) Thomas returned to testify after Hill, who had been aggressively questioned by several senators, and lashed out, vehemently denying Hill's claims. He called the proceedings a "high-tech lynching for uppity blacks." From there, the debate around Thomas's nomination became increasingly nasty and lewd. Ultimately the committee was split, and his nomination was sent to the Senate without a recommendation. Thomas shares with Samuel Alito the distinction of being confirmed by the narrowest margin. Both men scraped in with a 52-48 vote.

Where Thomas was brusque, Alito was timid. Democrats were expecting a brash, fierce "Scalito", a nickname that tied Alito to conservative Justice Antonin Scalia. But Alito appeared nervous and studious. The New York Times reported that Alito's "hands shook as he complusively tied and untied the lace of one shoe" during an early meeting with a Republican Senator. His hearings were combative nonetheless. Alito was nominated by President George W. Bush to replace moderate Justice Sandra Day O'Connor, so liberals were deeply concerned that Alito would shift the court to the right. Democrats focused on his stance on abortion and his membership of a Princeton University alumni organization that discouraged the admission of women and minorities. But they failed to muster enough votes for a filibuster, and Alito was confirmed with the support of four Democrats.

Interestingly the two justices often considered the most polarizing - John Paul Stevens and Antonin Scalia - had relatively non-controversial confirmations. Stevens is the longest serving member of the Supreme Court. A liberal known for filing dissents and separate opinions, it's easy to forget that Republican President Gerald Ford appointed Stevens. At the time of his confirmation, Stevens was seen as a moderate, an indication of how the court has changed in the past three decades. Appointed in the wake of Watergate, Ford overlooked political concerns in favor of merit. During his confirmation, Stevens wasn't even asked about Roe vs. Wade, the controversial abortion ruling that was handed down just two years earlier.

Antonin Scalia was nominated by President Reagan to replace William Rehnquist, who Reagan hoped to elevate to Chief Justice. The timing worked in Scalia's favor, as Democrats were too busy marshalling their resources against the Rehnquist nomination to provide significant opposition to Scalia. (Renquist was set to replace the more moderate Warren Burger, which left liberals worrying about the direction of the court.) Some in the left did bitterly oppose Scalia, mainly on civil rights grounds. Liberals were concerned about his positions on sexual harassment and affirmative action, but the only Senators to vote against him in the committee were Sen. Biden and Sen. Kennedy. Scalia was ultimately confirmed by a vote of 98-0. So sure was he of approval, Scalia was seen sipping champagne at party at DC's swanky Willard Hotel on the night the Senate was scheduled to vote on his confirmation.

Like Scalia, Anthony Kennedy's confirmation was overshadowed by another nomination: the disastrous Robert Bork. President Reagan had been so burned by the spectacular failure of Bork that he opted for a nominee who appeared to be a non-tedentious moderate conservative. The only real controversy around his nomination - his membership of two elite men's only clubs - was eliminated when he resigned from both. In his confirmation hearings, Kennedy gave such opaque answers that his views on polarizing issues remained unclear. As a result, politicians on both sides of the aisle projected their agenda on him. Infamously conservative Republican Senator Strom Thurmond praised Kennedy as an advocate of judicial restraint, while Senator Kennedy, bastion of the left, said he was pleased that the nominee considered the constitution a living document. Perhaps unsurprisingly, Kennedy has been the one remaining swing vote on the Supreme Court since the departure of Sandra Day O'Connor.

Since O'Connor's retirement, Ruth Bader Ginsburg has been the sole woman on the Supreme Court. President Clinton took a marathon 87 days to settle on Ginsburg as his nominee. In hearings, she declined to answer questions about how she would act in hypothetical situations. Eloquent and confident, Ginsburg told the committee, "Judges must be mindful of their place in society." Ginsburg had argued before the Supreme Court on women's rights issues six times, and some conservatives worried that her commitment to women's issues compromised her impartiality. But ultimately Ginsburg sailed through, with the Senate voting 96-3 in favor of her nomination. Ginsburg is only the second woman to have served on the Supreme Court. On the day she was sworn in, she was asked if she was liberal, conservative or moderate. "I don't believe that every child that's born alive is either a little liberal or else a little conservative, except in Gilbert and Sullivan," Ginsburg replied, referencing the operetta "Iolanthe" (and confounding the press corps.)

Clinton's second pick was Stephen Breyer, who he had initially considered for the first opening. But Breyer and Clinton had a rocky first meeting. Breyer, widely considered a pleasant optimist, was recovering from a serious bike accident at the time of the meeting. In his book The Nine: Inside the Secret World of the Supreme Court, Jeffrey Toobin writes that Clinton found Breyer "heartless." "I don't see enough humanity," Clinton reportedly told staffers. "I want a judge with a soul." But Breyer had a key advocate: Ted Kennedy, who had appointed Breyer as Chief Counsel to the Senate Judiciary Committee in 1979, when Kennedy was Chair. Breyer won Clinton over the second time, and Clinton didn't even wait for him to arrive in DC before announcing his nomination. Having worked on the Judiciary Committee, Breyer was well known to many of the Senators overseeing his confirmation. It was a largely uneventful affair, and Breyer was confirmed 87-9.

President George W. Bush originally nominated John Roberts to fill the seat vacated by Sandra Day O'Connor. But Chief Justice William Rehnquist passed away before Roberts's nomination came before the Senate, so Bush withdrew Roberts' nomination for O'Connor's seat and offered him as nominee for Chief Justice. Conservatives were thrilled by the notion of a young chief justice who could preside over the court for perhaps as long as four decades. Democrats may have put up a more aggressive fight had they not been so concerned over who would replace swing voter O'Connor. Roberts's impressive testimony raised the bar for confirmation hearings. His engaging performance was characterized by practiced erudition and deep knowledge - he quoted case law and the Federalist Papers with ease. He told the committee he was not an ideologue. But it wasn't enough to win over some on the left, who harbored lingering concerns about opinions he drafted as a young lawyer in the Reagan administration, including a legal defense of that administration's policy on abortion. Among the doubters: Barack Obama and Hillary Clinton, both of whom voted against his nomination, along with 20 other Democrats.

Tag(s): Hillary Clinton, Barack Obama, Senate, supreme court, George W. Bush, Sotomayor, bill clinton

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