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Institute explores contentious Supreme Court nominations


article created on: 2010-02-25T00:00:00

The often-contentious United States Supreme Court confirmation process took on historic perspective on Feb. 22 when Robert Klonoff, dean of Lewis and Clark Law School, addressed the Institute for Judaic Studies annual meeting at Congregation Neveh Shalom. Among his credits, Klonoff served as assistant to the Solicitor General where he argued before the Supreme Court.

“I’ve put together a modern history of the Supreme Court confirmation process which I think is on life support,” Klonoff said. “It’s become a media circus.”

Problems, Klonoff said, may have started with the 1916 confirmation hearings of Louis Brandeis, which were “laced with anti-Semitism.” Klonoff quoted Stephen Carter’s book, “The Confirmation Mess” regarding Thurgood Marshall’s 1967 nomination: “Thurgood Marshall was subjected to a degree of racist smear that the confirmation process had not seen before and has not seen since.”

However, the 1969 and 1970 nominations of Clement Furman Haynsworth and Harrold Carswell was, Klonoff said, “the start of the modern Supreme Court mess. President Nixon was new, and the Democrats wanted to flex their muscle. They defeated both of them.”

“These two jurists,” Klonoff stressed, “were like night and day.” Haynsworth, he said, was one of the great civil rights legislators of all time, yet, he was smeared by allegations of racism and conflicts of interest.

Carswell, according to Klonoff, was racist and anti-women’s rights. “He did not have the intellectual capacity.” Klonoff found it telling that Carwell supporter, Rep. Roman Hruska, said: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation.”

Nominee Robert Bork’s 1987 hearings took on a personal tone. “I believe Bork was the most qualified person ever to be nominated for the Supreme Court,” Klonoff said. “I had him at Yale Law School. He was revered as a professor. He was open-minded and honest.”

Klonoff noted the press gathered outside Bork’s house, searched his garbage cans and checked local video stores for names of movies he rented. Klonoff believes Bork’s failed nomination was due to his honesty during the hearings. Recent nominees like Justices Ruth Bader Ginsberg and John Roberts refuse to answer senate questions stating that it could compromise their ability to be independent in future cases.

But even soap operas took a break during the 1991 Clarence Thomas hearings. Klonoff believes the truth to Anita Hill’s accusations of sexual harassment was irrelevant to the confirmation. “The circus could get nowhere because it was his word against hers, and they were the only ones who participated in the conversation.”

“The press is looking to bring down candidates,” Klonoff said. He was disgusted with the media blitz during Sonya Sotomayor’s nomination. A close friend, he actively spoke out in her favor in newspapers and on television.

Klonoff believes public pressure is essential for improving the Supreme Court selection process. “I wish I had a clear solution,” he said. He recommends an expert confirmation panel. “If you had law professors asking the questions, it would be more meaningful.”

“And,” he added, “presidents must be realistic in whom they nominate. As much as I respected Bork, he was a lightning rod. I urge presidents to find the best person for the job and put politics aside.”

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