Supreme Court confirmation hearings have a reputation as political circuses, though they are often tame

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There are many ways to raise Cain.

Cousins ​​raise Cain at family reunion picnics. Shareholders raise Cain at board meetings about poor earnings reports. Basketball coaches lift Cain with referees on the sidelines.

But no one elevates Cain like the Senate at a Supreme Court Justice’s confirmation hearing.


Granted, that doesn’t happen every time a Supreme Court nominee comes before the Senate for confirmation.

But senators and activists on both sides have brought up a lot of Cain in recent confirmation hearings.

Confirmation hearings for Supreme Court Justice Clarence Thomas in 1991 and Supreme Court Justice Brett Kavanaugh in 2018 all but elevated Cain. Failed confirmation fights involving nominees Robert Bork and, briefly, Douglas Ginsburg in 1987 came close.

But other Supreme Court confirmation hearings are tame. To be clear, they may not appear as bucolic as a warm spring day with Edvard Grieg’s “Morning Mood” playing in the background. But despite the loud business to confirm Thomas and Kavanaugh, fervent confirmation hearings are the exception, not the rule.

But let’s explore why some of these confirmation hearings erupt into chaos.

Legislative. Executive. Judicial. The appointment of a Supreme Court justice merges the three branches of government into a symbiotic political ballet. This mixture is rare in American politics.

A judge’s lifetime appointment can change a nation during their tenure.

So much is at stake. And that’s why both sides sometimes go broke for a given candidate.

Thomas appeared to be on track for confirmation when his hearings initially ended in September 1991. But that was before law professor Anita Hill brought salacious sexual harassment charges against Thomas. The Senate Judiciary Committee, chaired at the time by the then Senator. Joe Biden, reopened the hearings.

And so hell was raised.

“It’s a circus. It’s a national disgrace,” fumed Thomas. “It’s a high-tech lynching for arrogant black people.”

Each network broadcast Thomas’s hearings live. The public: transfixed. CBS held the rights to the Major League Baseball playoffs this fall. CBS even briefly debated giving up the national pastime and showing the ratings instead.

The Senate closed hearings in early September 2018 for Kavanaugh. But the Senate soon found itself on a Miltonian bridge above chaos when Christine Blasey Ford accused Kavanaugh of sexually assaulting her nearly four decades earlier when they were in high school.


“When you see (Supreme Court Justices) Sotomayor and Kagan tell them Lindsey said hello because I voted for them. I would never do to them what you did to that guy,” erupted Senator Lindsey Graham, RS.C. ., practically spitting his words at the Democrats on the dais. “Boy, you all want power. God, I hope you never get it.”

Following Thomas’ confirmation, a rather vanilla series of hearings unfolded for the late Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Chief Justice John Roberts, and Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, and Neil Gorsuch.

Gorsuch’s hearing was not exuberant, but his nomination was overfed. That’s because Democrats believed the seat Gorsuch would soon fill should have gone to current Attorney General Merrick Garland. President Obama nominated Garland to the High Court after Justice Antonin Scalia died in early 2016. But Republicans refused to grant Garland a hearing. When President Trump took office and nominated Gorsuch, the GOP heard from Gorsuch and confirmed him. However, current Senate Minority Leader Mitch McConnell, R-Ky., had to set a new procedural precedent to prevent Democrats from filibustering Gorsuch’s nomination.

“We will do what is necessary to confirm Justice Gorsuch to the Supreme Court,” said Senate Minority Whip John Thune, RS.D., at the time, then Majority Whip.

McConnell argued that the Senate should not confirm Garland in a presidential election year. But even though Judge Amy Coney Barrett’s confirmation hearing went well, Republicans raced to confirm her — just days before the 2020 election.

“I recognize, Mr. President, that goose is pretty much done,” said Sen. Cory Booker, DN.J., of Republican Tactics during Barrett’s hearing.

In fact, Barrett’s hearing was exceptionally quiet for two reasons. First, little could top the spectacle surrounding Kavanaugh’s hearings. Both parties wanted to avoid a repeat. Second, the Capitol remained mostly closed to the public and protesters due to the pandemic.

But this is a look at the provisions of the confirmation hearings themselves. Most are drowsy. The anomalies were the ruckus that unfolded around Thomas and Kavanaugh’s hearings. Cases where hell has indeed been raised.

But even the chaos sparked by Kavanaugh’s confirmation was no match for the smut that dominated Thomas’s 1991 hearings.

“I think the one that was most embarrassing was his discussion of pornography involving women with large breasts and engaging in a variety of sexual relations with different people or animals,” Anita Hill testified after filing sexual harassment charges against Thomas.

Republican senators have sought to undermine Hill’s claims. They suggested that Hill was not credible. Perhaps, they hinted, Hill made it all up. The senators tested Hill’s insinuation that Thomas told her about pubic hair apparently floating in a soft drink.

“You said you never said that, ‘Who put pubic hair on my Coke?'” former Sen. Orrin Hatch, R-Utah, of Thomas asked.

Republicans believed Coke’s story mirrored a scene depicted in William Peter Blatty’s novel “The Exorcist.” Hatch showed up at a court hearing one day armed with a copy.

“Page 70 of this particular version of ‘The Exorcist,'” Hatch read. “‘There seemed to be an alien pubic hair floating around in my gin.'”

Every hearing day was more risky.

Supreme Court nominees never even got confirmation hearings until over 100 years ago. Supreme Court Justice John Harlan received the first “modern” confirmation hearing in 1955. But over time, confirmation hearings turned into public spectacles – fashionable for television.


“Many show horse congressmen see this as an opportunity to create a national brand,” said Casey Burgat, professor of political science at George Washington University. “It’s great theatrics.”

Former Sen. Kelly Ayotte, RN.H., served as a “sherpa” for Gorsuch’s confirmation process. Each administration typically fills the Sherpa role with someone intimately familiar with senators and Senate customs. The Sherpa accompanies candidates to meetings with senators and prepares them for difficult questions they may face during their auditions.

Ayotte described the “gotcha” questions for candidates as a “game” in the Senate.

“They’re trying to see if they can trip the candidate up,” Ayotte said.

Senators don’t expect the Ketanji Brown Jackson hearings to turn into a hellish experience.

Until there.

“It will be a serious and dignified process,” McConnell said.


But there’s a reason why some Supreme Court confirmations are the most intense processes in the US government.

The rulings made today by the Senate on a Supreme Court choice echo decades in the future. This is why upholding justice is one of the most excruciating exercises in American political experience.


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