In his biography of John Marshall, Jean Edward Smith recounts the flurry of judicial commissions that John Adams issued just before handing over the presidency to Thomas Jefferson:

A week before Jefferson took office, the lame-duck Federalist Congress enacted legislation authorizing the president to appoint a number of justices of the peace in the nation’s capital. On March 2, 1801, two days before his term expired, President Adams nominated forty-two persons for that office. The nominees were duly confirmed by the Senate on March 3, shortly before adjournment. Adams immediately signed the commissions, and Marshall, as secretary of state, affixed the Great Seal of the United States. [Emphasis added.]

Smith here conveys the conventional account that Marshall continued “as secretary of state” after becoming Chief Justice in early February 1801. That account has deep roots: In his four-volume biography of Marshall published over a century ago, Albert Beveridge states that “Marshall was at the same time Chief Justice of the Supreme Court and Secretary of State” and that “Marshall, as Secretary of State, signed and sealed the commissions” that Adams issued on the eve of Jefferson’s inauguration.

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But, as we shall see, this conventional account appears to be mistaken. Marshall, the evidence indicates, was not Secretary of State after he became Chief Justice. He no longer held the office of Secretary of State. Rather, he was merely performing the duties of the office. In today’s parlance, we would say that he was acting Secretary of State.

***

The very attentive reader of my last post (“How a Vanishing Supreme Court Seat Led to John Marshall’s Appointment”) might have noticed that in two neighboring sentences near the end I stated, seemingly verbosely, that Marshall “continued to perform the duties of the Secretary of State until Adams’s presidency ended on March 4” and that Marshall was “[p]erforming the duties of the Secretary of State” when he affixed the Great Seal to the commissions of the justices of the peace. I was in fact undertaking to be precise (and to incorporate what I had just learned from my longtime Bench Memos colleague Matthew Franck).

On the same day—February 4, 1801—that Marshall took the oath as Chief Justice, Adams wrote a letter to Marshall stating that he was “happy in your acceptance of the office of Chief Justice.” Adams further informed Marshall that the “Circumstances … of the times render it necessary that I should request and Authorise you, as I do by this Letter, to continue to discharge all the Duties of Secretary of State, untill ulteriour Arrangements can be made.” (All spelling oddities in original.)

Adams was evidently availing himself of the power granted by a statute enacted in 1795. That statute provided that “in case of vacancy in the office of Secretary of State [or various other offices], … it shall be lawful for the President … to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed” (but not “for a longer term than six months”). It was, in short, a precursor to the Federal Vacancies Reform Act of 1998 that is now in effect and to that Act’s conferral of power to create what we now call “acting” officers.

One piece of evidence that Adams was invoking his power under the 1795 statute is that Adams seemed to regard it as necessary to “Authorise” Marshall “to continue to discharge all the Duties of Secretary of State.” Indeed, he specified that “I do [so] by this Letter.” But if Adams wanted Marshall simply to remain as Secretary of State (and if he believed that it was constitutionally permissible for Marshall to do so), there would have been no need for Adams to provide Marshall a formal new authorization.

***

Marshall also appears to have clearly understood that, after he became Chief Justice, he was performing the duties of Secretary of State pursuant to the 1795 statute (as acting Secretary, as we would now say). I draw here on an intriguing exchange of letters between Jefferson and Marshall right before Jefferson’s inauguration on March 4, 1801.

In a letter to Marshall on March 2, Jefferson explained that he had been requested “to sign some sea letters to be dated on or after the 4th. of Mar.” (From what I can gather, signed but otherwise blank sea letters were sent to customs collectors, who would issue them to shipmasters to establish proof of their nationality and to guarantee protection of their vessels.) The sea letters, in addition to being signed by Jefferson, needed a second qualified signature (i.e., needed to be countersigned). Jefferson wanted Marshall to sign them but had learned that Marshall saw a procedural wrinkle that needed to be ironed out:

I understood you would countersign them as the person appointed to perform the duties of Secretary of state, but that you thought a reappointment to be dated the 4th. of March would be necessary.

Marshall responded the same day:

Not being the Secretary of State, & only performing the duties of that office at the request of the President, the request becomes indispensably necessary to give validity to any act which purports to be done on the 4th. of March.

In other words, Jefferson understood, and Marshall clearly confirmed, that Marshall did not view himself to be Secretary of State. If he were Secretary of State, he would automatically continue in that office into Jefferson’s presidency, and Jefferson would not need to take any action to appoint him. Marshall obviously believed that his service as acting Secretary pursuant to the 1795 statute would terminate when Adams’s presidency ended. It’s not at all clear to me that he was right, but that’s the only reason that he would think that his “reappointment” pursuant to the same statute was “indispensably necessary” for him to countersign the sea letters.

In a letter dated March 4, 1801, Jefferson provided Marshall the reauthorization he requested and invoked the 1795 statute:

In pursuance of the act of Congress providing that in case of vacancy in the office of Secretary of state the President of the US. may authorize a person to perform the duties of the same, I am to ask the favor of you, & hereby authorize you to perform the duties of the Secretary of state until a successor to that office shall be appointed.

In his own letter dated March 4, Marshall promptly accepted Jefferson’s reauthorization:

I have receiv[e]d your letter requesting me to perform the duties of Secretary of State until a successor be appointed. I shall with great pleasure obey this request…

Marshall’s service as Jefferson’s acting Secretary of State lasted one day. On March 5, Jefferson authorized Levi Lincoln to play that role.

***

Marshall’s insistence that it was “indispensably necessary” for Jefferson to authorize him to countersign the sign letters is especially curious in that Marshall was accommodating Jefferson’s desire to issue the sea letters before Jefferson in fact became president—before, in other words, he actually had the authority to issue the sea letters. Jefferson issued the sea letters before his inauguration and postdated them to give the false appearance that he had issued them as president. Jefferson spelled this plan out plainly for Marshall in his March 2 letter:

I was desired two or three days ago to sign some sea letters to be dated on or after the 4th. of Mar. but in the mean time to be forwarded to the different ports.

Marshall fully understood and did his part. Note that in his March 2 letter responding to Jefferson he stated that the authorization that he requested is “indispensably necessary to give validity to any act which purports to be done on the 4th. of March.” Any doubt what he meant by “purports” is eliminated by his next sentence: “In the confidence” that Jefferson would make the authorization, Marshall committed to “immediately proceed to sign the sea letters”—that is, before Jefferson had become president.

What’s more, Jefferson post-dated his March 4 letter to Marshall, and Marshall did the same—or, rather, tried to—with his March 4 response. Jefferson’s meticulous record of his correspondence shows that he received Marshall’s response on March 3, so he must have sent his supposed March 4 letter no later than March 3. (See annotation here.) So Jefferson did not yet have the power to authorize Marshall to perform the duties of Secretary of State.

So while Marshall was administering the presidential oath to Thomas Jefferson on March 4, sea letters that Jefferson had purported to sign as president and that Marshall had purported to confirm by his own signature were on their way to customs collectors along the Atlantic coast.

***

Another curious aspect is that instead of postdating his response, as he obviously intended to do, Marshall actually dated his letter March 4, 1781—twenty years earlier! (I wonder if Jefferson noticed.) That should provide some comfort to those of us who put the previous year’s date on letters we write well into January.

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Marshall’s performance of the duties of Secretary of State in the month following his appointment as Chief Justice has engendered at least two sets of controversies:

(1) Under a sound understanding of constitutional separation-of-powers principles, was it proper for Marshall, once he became Chief Justice, to continue to serve in the Adams administration?

(2) Given Marshall’s role in sealing Marbury’s commission and directing that it be delivered to him, should Marshall have recused himself from participating in the decision in Marbury v. Madison?

I’m not going to offer my two cents’ worth on these questions here. I will instead simply note that I doubt very much that the answers to these questions are affected by whether Marshall continued as Secretary of State (the conventional assumption) or was instead performing the powers of the office pursuant to the 1795 statute (as acting Secretary).

***

As fastidious as Marshall was to inform Jefferson that he wasn’t actually Secretary of State (“Not being the Secretary of State, & only performing the duties of that office at the request of the President…”), it’s amusing to see that he overlooked the distinction two years later in his opinion in Marbury v. Madison. In the two instances in which Marshall cites his own actions in sealing Adams’s commissions, he refers to himself as “the Secretary of State”:

• Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.

• It is then the opinion of the Court … [t]hat, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the County of Washington in the District of Columbia, and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years.

One can sympathize, I suppose, with Marshall’s decision not to write “by the person performing the duties of the Secretary of State,” as that circumlocution might have drawn more attention than he wanted to the fact that he was that person.

***
Some puzzles remain. Although Marshall and Jefferson were second cousins (once removed), they disliked and distrusted each other. Why would Jefferson expect Marshall to go along with his irregular scheme? Why did Marshall do so? Why didn’t whoever “desired” Jefferson to issue the sea letters go to Adams instead?

With the large caveat that I’m no historian and haven’t taken a deep dive into histories of the period, let me hazard a guess:

The Convention of 1800 that Chief Justice Oliver Ellsworth negotiated on behalf of the Adams administration brought an end to the Quasi-War with France and opened up trade with both France and Britain. As Marshall knew, Jefferson was a strong supporter of the Convention of 1800. Marshall would have been eager to help Jefferson revive trans-Atlantic shipping, and he would have seen that revival as a vindication of Adams’s policy. Adams, meanwhile, was very busy in his last days as president finalizing his judicial appointments. It’s easy to imagine that he wouldn’t want to be bothered with sea letters. Given how close Adams and Marshall were, they probably agreed that Marshall could cooperate with Jefferson.

***

In fairness to Jean Edward Smith, I must note that some twenty pages before stating that “Marshall, as secretary of state, affixed the Great Seal of the United States” to the commissions, Smith accurately describes the February 4 exchange of letters between Adams and Marshall. But he confusedly states that a memorandum that Marshall wrote “at the end of February” “ended Marshall’s tenure as secretary of state.” He seems in this passage to somehow be forgetting about the March commissions, and he doesn’t recognize that the February 4 letters show that Marshall’s acceptance of his judicial commission terminated his position as Secretary of State.

Beveridge similarly quotes the February 4 letters but doesn’t grasp their meaning. He even insists that Marshall “would have been entirely justified” in drawing “both salaries” for Chief Justice and Secretary of State.

The Office of the Historian at the Department of State, I’m pleased to see, accurately states that Marshall’s appointment as Secretary of State terminated on February 4, and it says that he was “Acting as Secretary of State” from February 4 through March 4. (I wish that it did not use the term “Secretary of State ad interim” as a synonym for “Acting as Secretary of State.”)

Two of the scholars whose work I drew on in my previous post—historian Kathryn Turner and Marshall biographer Jean Edward Smith—have offered competing accounts of how section 3 affected Adams’s thinking. Disagreeing with both, I’ll advance my own theory.

***

John Adams signed into law the Judiciary Act of 1801 (also known as the Midnight Judges Act) on February 13, 1801, nineteen days before his single term as president ended. Among its many provisions, the Act ended the justices’ circuit-riding duties and created instead sixteen circuit judgeships across the six judicial circuits.

Because it was no longer necessary to have a justice for each circuit, Congress was able to eliminate the awkward possibility that a Court of six justices would generate tie votes. And because a huge burden of work would be lifted from the justices, the Act reduced the number of justices to five (rather than, say, increasing it to seven). Specifically, section 3 of the Act stated:

That from and after the next vacancy that shall happen in the said court [the Supreme Court], it shall consist of five justices only; that is to say, of one chief justice, and four associate justices.

The Judiciary Act of 1801 is often regarded as the Federalist Party’s intensely partisan response to its defeats, in the presidency and in Congress, in the 1800 elections. But as Turner argues (in “Federalist Policy and the Judiciary Act of 1801”), its bolstering of federal judicial power should be understood more broadly as an “integral part of [longstanding] Federalist policy.” The Federalists had introduced very similar legislation in March 1800 (and Marshall, as a House member, had been appointed to the committee to review it). To be sure, as Turner acknowledges, the political defeats in November 1800 “gave a driving urgency to the fight for … passage” of the Act. Her larger point is that the Act “was not conceived in the exigencies of defeat to compensate for that catastrophe.”

***

In order to try to make sense of the role that section 3 played in Adams’s selection of Marshall, here is a chronology of relevant events:

• December 15, 1800: Adams learns of Oliver Ellsworth’s resignation as Chief Justice.

• December 18: Adams nominates John Jay as Chief Justice.

• December 19:

  • The Senate confirms Jay’s nomination, and Adams issues Jay’s commission.

  • The bill that will become the Judiciary Act of 1801 is introduced in the House. (According to one scholar, no copy of the bill as introduced exists, but “we do know that it had the same number of sections and was spoken of by members as being substantially unaltered from” the March 1800 bill. For our purposes, that would mean that it contained something very much like section 3.)

• January 12, 1801: The House (more precisely, the Committee of the Whole) makes some amendments to the Judiciary Act bill and tees it up for a floor vote. (Section 3 was surely in final form by this point.)

• January 19, 1801: Adams receives Jay’s letter declining his appointment. Adams informs Marshall that he will nominate him as Chief Justice.

• January 20:

  • Adams nominates Marshall as Chief Justice.

  • The House passes the Judiciary Act bill and sends it to the Senate.

• January 27: The Senate confirms Marshall’s nomination as Chief Justice.

• January 29: The Senate committee to which the Judiciary Act bill had been referred reports it, without any amendments, to the Senate floor.

• February 7: The Senate passes the Judiciary Act bill (without any amendments).

• February 13: Adams signs into law the Judiciary Act of 1801.

***

Now let’s look at Turner’s account of the role that section 3 played in Adams’s decision to nominate Marshall.

Turner makes much of a note that Benjamin Stoddert, the Secretary of the Navy, sent to Adams on January 19. In his note, Stoddert informs Adams that “some members of Congress” have requested him to relay word that “the Judiciary bill would be taken up in the House of Representatives tomorrow—& be passed upon.” Further:

As the bill proposes a reduction of the Judges to five—and as there are already five Judges in commission, it is suggested that there might be more difficulty in appointing a chief Justice without taking him from the present Judges, after the passage of this bill even by one Branch of the Legislature, than before. [Turner’s italics.]

In the event that Jay declined his commission, Adams had initially wanted to elevate one of the associate justices to the position of Chief Justice and to nominate Philadelphia lawyer Jared Ingersoll as associate justice. But Ingersoll had indicated that he wouldn’t accept an appointment unless it was certain that the bill eliminating the justices’ circuit-riding duties would be enacted.

Turner concludes:

The sequence of this combination of circumstances makes clear that the action of the House of Representatives on the judiciary bill had direct bearing on the appointment which the President did make to the vacant seat on the bench. It also clarifies the reason why John Adams failed to follow his plan of selecting the chief justice from the membership of the Court. Indeed, it seems likely that it was the timing of the House action alone which forced him at this point to select a figure from outside the Court as the new chief justice. [Turner’s italics.]

I confess that I find it puzzling that the House members whose message Stoddert was transmitting would think that the mere passage of the Act by the House would make it more difficult for Adams to elevate a sitting justice to Chief Justice. Why would it be politically more palatable for Adams to make such a selection right before the House passed the Act but not a few days after? Why would Turner think that the prospect of the House vote on January 20 “forced” Adams “to select a figure from outside the Court as the new chief justice”?

I see an answer to the puzzle, but it’s not one that Turner provides. It’s legal, not political.

If Adams elevated a sitting justice to Chief Justice, the resulting vacancy in the associate-justice position would arise only once Adams appointed that person as Chief Justice. If section 3 became law in the meantime,* then the newly vacated associate-justice seat would be abolished, so Adams would not be able to appoint anyone to that seat. The Court would be reduced to five justices.

By picking someone from outside the Court, Adams would be adding a sixth Federalist justice. Marshall would be the second youngest member of the Court and have the prospect of a long tenure as Chief Justice. What’s more, section 3 would likely operate to the detriment of Adams’s Democratic-Republican successor (it wasn’t yet clear whether that would be Thomas Jefferson or Aaron Burr), as the first seat that became vacant during his presidency would disappear.

One objection to my answer is that Adams and the Federalists who controlled Congress should have been able to coordinate things so that the Judiciary Act of 1801 became law (or section 3 became effective) only after Adams elevated a sitting justice and filled the seat vacated by that justice. But Adams had very contentious relations with Federalists in Congress—Turner recounts that “the Senate delayed in approving Marshall’s nomination while Federalist leaders tried unsuccessfully to persuade Adams to choose [Justice William] Paterson instead”—so he might reasonably have decided to play it safe.

***

I first went down this rabbit hole when I read this passage (p. 14) in Smith’s biography of Marshall about the Judiciary Act of 1801 and section 3:

If Adams delayed naming a replacement until the bill was passed, Ellsworth’s resignation in itself would reduce the size of the Court, and the incoming Republican president would name the next chief justice. That left Adams almost no time to find a replacement.

I don’t think that Smith is correct that “Ellsworth’s resignation in itself would reduce the size of the Court.” Section 3 (which Smith doesn’t quote) applies to “the next vacancy that shall happen.” Ellsworth’s vacancy had already happened** when the Federalists re-introduced their judicial-reform legislation on December 19, 1800. (Jay’s rejection of his commission left the vacancy unfilled; it did not create a new vacancy, and even on the misunderstanding that it did, Jay’s rejection obviously took place before Adams made another nomination.)

***

John Marshall began his 34-year tenure as Chief Justice on February 4, 1801. At Adams’s request, he continued to perform the duties of the Secretary of State until Adams’s presidency ended on March 4.

On February 27, Congress enacted the District of Columbia Organic Act of 1801, which (among other things) created positions of justice of the peace in D.C. Performing the duties of the Secretary of State, Marshall affixed the Great Seal of the United States to the commissions that Adams issued for these positions and directed his younger brother James to deliver them. James’s failure to deliver William Marbury’s commission to him would of course give rise to Marshall’s landmark ruling in Marbury v. Madison in 1803.

In early 1802, the new Democratic-Republican majority in Congress repealed the Judiciary Act of 1801, so section 3 never operated—beyond whatever effect it had on Adams’s selection of Marshall.

* One might also argue that if the newly vacated associate-justice seat hadn’t been filled by the time section 3 became law, the vacancy would be deemed to “happen” after enactment. That might well strike you as ludicrous, but a five-justice majority in NLRB v. Noel Canning (2014) ruled that vacancies “happen” for purposes of the Recess Appointments Clause both when they “first come into existence during a recess” and when they “arise prior to a recess but continue to exist during the recess.” As Justice Scalia notes in his separate opinion disagreeing with the majority on this point, Adams’s Attorney General Charles Lee rejected that interpretation (even though it would have benefited Adams). It seems highly unlikely that Lee would have had a different reading of “happen” in section 3, especially as the full phrase “the next vacancy that shall happen” would seem to further preclude the possibility that an already-existing vacancy can trigger section 3.

** See previous footnote regarding possible contrary claim.

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John Marshall’s tenure as Chief Justice was so foundational to the role of the Supreme Court in the American system of government that it’s easy to overlook the remarkable serendipities that made it possible. I’ll address three of them here: Oliver Ellsworth’s kidney stones, John Jay’s rejection of his commission, and Timothy Pickering’s sabotage of Adams.

I draw here from three scholarly articles—Kathryn Turner’s “The Appointment of Chief Justice Marshall” (1960), R.B. Bernstein’s “President John Adams and Four Chief Justices” (2013), and Lindsay Chervinsky’s “John Adams’s Most Important Presidential Precedent” (2021)—from Jean Edward Smith’s 1996 biography of John Marshall, and from various public sources.

***

In 1796, George Washington appointed Oliver Ellsworth as Chief Justice. In 1799, John Adams selected Ellsworth to be part of a delegation to France to resolve the so-called Quasi-War. Ellsworth, still in his position as Chief Justice, left for France in November 1799 and, after an arduous voyage, arrived four months later. In September 1800, he consummated a peace agreement with Napoleon.

Ellsworth’s health, however, continued to suffer from his voyage to France. In a letter to Adams dated October 16, 1800, Ellsworth informed Adams that “the unfortunate fruit of sufferings at sea” was that he was “[c]onstantly afflicted with the gravel”—what we today call kidney stones—“and the gout in my kidnies [sic]” and was therefore “not in a condition to undertake a voyage to America at this late season of the year.” Indeed, even if he were already back in the United States, his poor health meant that he would not “be able to discharge my official duties” as Chief Justice. He therefore resigned his position.

Adams did not receive Ellsworth’s letter until December 15, 1800. The very next day, he learned that he had lost his bid for re-election and that his youngest son Charles had died of complications from alcoholism.

It wasn’t yet clear who would win the electoral-college tie between Thomas Jefferson and his supposed vice-presidential candidate Aaron Burr. But Adams knew that his presidency would end on March 4, 1801.

***
Adams immediately decided that John Jay should replace Ellsworth as Chief Justice. Jay had been the Court’s first Chief Justice, appointed by Washington in 1789. But Jay had resigned the position in 1795, at the age of 49, largely because he detested the “onerous and sometimes potentially life-threatening” duty (Bernstein) of justices to “ride circuit”—to travel around the country to preside over regional circuit courts.

Jay was elected governor of New York in 1795. He was re-elected in 1798, and his three-year term would expire in mid-1801.

Adams hoped that pending legislation to abolish circuit-riding would make Jay willing to serve again as Chief Justice. Without consulting Jay, Adams nominated him on December 18. The Senate confirmed the nomination the very next day, December 19. That same day, Adams issued Jay’s commission and sent him a letter exhorting him to accept the appointment:

In the future Administration of our Country the firmest Security We can have against the Effects of visionary Schemes or fluctuating Theories, will be in a solid Judiciary: and nothing will cheer the hopes of the best Men so much as your Acceptance of this appointment. You have now a great Opportunity to render a most signal service to your Country. I therefore pray you most earnestly to consider of it, seriously and accept it.

I had no permission from you to take this Step, but it appeared to me that Providence had thrown in my Way an Opportunity not only of marking to the publick, the Spot where, in my Opinion the greatest Mass of Worth remained collected in one Individual but of furnishing my Country with the best Security, its inhabitants afforded, against the increasing dissolution of Morals.

A month later, in mid-January 1801, Adams received Jay’s letter (dated January 2) rejecting the appointment and explaining why. The duty of circuit-riding appears to have been the driving factor, though Jay’s language was indirect.

Jay complained that the 1789 Act that established the judiciary “was in some Respects more accommodated to certain Prejudices and Sensibilities, than to the great and obvious Principles of sound Policy” and that repeated efforts to fix the problem “have proved fruitless.” As Stuart Banner details in his outstanding history of the Supreme Court, from the very beginning the justices “persistently lobbied the other two branches of government …. pleading to be relieved from their circuit[-riding] obligations.” Jay explained that he resigned as Chief Justice in 1795 “perfectly convinced that under a System so defective, [the Supreme Court] would not obtain the Energy weight and Dignity which are essential to its affording due support to the national Governm[en]t.”

Having “carefully considered what is my Duty, and ought to be my conduct on this unexpected and interesting occasion,” Jay told Adams that “the State of my Health removes every Doubt” about whether he should accept the appointment. Here again, his underlying complaint is evidently about circuit-riding, as he observes that the state of his health is “clearly and decidedly incompetent to the Fatigues incident to the office.”

***

Timothy Pickering became Secretary of State under George Washington in 1795. When Adams became president in 1797, he decided to retain Pickering as well as Washington’s Secretary of War James McHenry and Secretary of Treasury Oliver Wolcott Jr., even though all three were loyal to Alexander Hamilton rather than Adams. In the words of one presidential historian, “Over the next few years, they tried to sabotage Adams’s foreign policy, thwarted his efforts to keep the country out of war, and undermined his reelection campaign.” According to the custodian of his papers, Pickering sought war with France, tried to block two of Adams’s nominations, and “secretly conferred with Alexander Hamilton and other leading Federalists, reporting to them what went on in cabinet meetings with the president.”

By May 1800, Adams had finally had enough of McHenry and Pickering. He forced McHenry to resign and nominated Marshall as his new Secretary of War. The Senate promptly confirmed the nomination, but Marshall, “not believ[ing] myself well qualified for this department,” rejected the appointment.

Adams then invited Pickering to resign. Pickering replied that he preferred to remain in office. Adams then fired him. Adams nominated Marshall as Secretary of State, the Senate confirmed the nomination, and this time Marshall accepted it.

John Marshall became Secretary of State on June 13, 1800, and over the next seven months built a strong relationship of trust with Adams.

***

Years later, Marshall provided an account of what happened on January 19, 1801, when Adams read John Jay’s letter declining his appointment as Chief Justice. Adams asked Marshall, “Whom should I nominate now?” Marshall suggested that Adams elevate Associate Justice William Paterson. Adams rejected the suggestion “in a decided tone.” Marshall’s account continues:

After a moment’s hesitation he [Adams] said, “I believe I must nominate you.” I had never before heard myself named for the office and had not even thought of it. I was pleased as well as surprised, and bowed in silence. Next day I was nominated.

***

If Oliver Ellsworth hadn’t developed kidney stones (probably because of dehydration) on his voyage to France, he would have continued as Chief Justice into Jefferson’s presidency, and Jefferson would have named his successor. (Or perhaps Madison or Monroe would have. Ellsworth died during Jefferson’s second term, but he is said never to have fully recovered from his France trip, so if he hadn’t gotten so ill, he might have lived longer.) Would a Chief Justice selected by Jefferson have charted a course for the nation remotely like Marshall’s? That is very unlikely.

If Congress had abolished circuit-riding by 1800, John Jay might well have accepted Adams’s appointment as Chief Justice. Perhaps Jay, who lived until 1829 (six years shy of Marshall), would have established himself as the central figure in American constitutional history. Perhaps not.

If Pickering had been loyal to Adams, would Marshall have had the opportunity to earn Adams’s deep trust? It’s difficult to see how. Plus, Marshall had already declined Adams’s offer to appoint him as an Associate Justice in 1798. Why, but for Marshall’s valuable service as Secretary of State, would Adams turn to him for a more exalted position?

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The vote stands in stark contrast to the Senate’s vote 16 years earlier on Bill Clinton’s first nominee to the Supreme Court. Ruth Bader Ginsburg was confirmed by a vote of 96 to 3. Of the 44 Republican senators, 41 voted for Ginsburg. The three senators who voted against her—Jesse Helms, Don Nickles, and Bob Smith—were very conservative and strongly pro-life.

Let’s wrap up the Sotomayor nomination by taking a closer look at the vote and by tossing in a few nuggets.

***

The big lesson from the Sotomayor vote is that most Republicans were now fighting Supreme Court nominations on the ground of judicial philosophy. Back in 1993, they were wedded to the “deference” model. Under that approach, senators deciding whether to support or oppose a nominee of an opposite-party president would ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee met some suitable standard of intellect, character, and experience.

As I’ve discussed, Republican senators might have had strategic reasons (or illusions) in 1993, or they might have been acting in their own narrow interests. But any hope that Democrats would reciprocate deference had been extinguished by the Roberts and Alito confirmation battles in 2005 and 2006. Further, the conservative base of the Republican party had so mobilized over judicial confirmations that voting for a judicial liberal was risky for most Republican senators.

A look at the nine Republicans who voted for Sotomayor is revealing.

Four of the nine—Christopher Bond, Judd Gregg, Mel Martínez, and George Voinovich—had already announced that they wouldn’t be seeking re-election in 2010.

Two—Olympia Snowe and Susan Collins—were moderates (or moderate liberals) from Maine and perhaps the only two Republicans whose constituency gave them an electoral incentive to vote for Sotomayor.

Lamar Alexander, also a moderate, had just been re-elected in Tennessee in 2008, so he had five more years to calm things down. (In August 2013, Tea Party groups threatened him with a primary challenge, but Alexander deftly marginalized his conservative opponent.)

Richard Lugar, having been elected to a sixth term in 2006 with 87.4% of the vote, might have felt invincible. He would end up being trounced in the Republican primary in 2012, and his votes for Sotomayor and for Elena Kagan in 2010 were widely regarded as a major cause of his defeat.

The ninth senator, Lindsey Graham, is more perplexing. Graham, like Alexander, had just been elected in 2008 to his second term, but South Carolina was much more conservative than Tennessee, so Graham had more at risk from voting for Sotomayor. For better or worse, Graham seemed to believe his own rhetoric about deference: “I feel that [Barack Obama] deserves some deference on my part when it comes to his first selection to the Supreme Court.”

***

Sotomayor’s record and testimony made it much easier for Republicans to vote against the first Hispanic nominee to the Supreme Court. For example:

• Her dismissive treatment of the racial-discrimination claims brought by twenty firefighters, nineteen whites and one Hispanic, in Ricci v. DeStefano, and the Supreme Court’s repudiation of her position right in the middle of her confirmation battle.

• Her belief that a “wise Latina” judge could and should draw on the “richness of her experiences” to “reach a better conclusion than a white male who hasn’t lived that life.”

• Her blatantly false testimony about her permissive position on looking to foreign and international law to decide the meaning of provisions of our Constitution.

• Her membership (before becoming a judge) on the board of the Puerto Rican Legal Defense and Education Fund, an organization that took aggressive positions on abortion and other liberal issues.

Criticism of Sotomayor’s quality by other liberals also made her vulnerable. Although liberal academic superstar Laurence Tribe’s condemnation of Sotomayor as “not nearly as smart as she seems to think she is” wouldn’t become known until later, similar concerns (“not that smart and kind of a bully on the bench”) afflicted her pre-nomination candidacy. And her testimony about her judicial philosophy presented a ridiculously wooden description of the judicial role that appalled progressives. As one lefty law professor wrote:

I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court.

***

There were a few matters that I wasn’t able to work into my previous posts, so any readers who can’t get enough of Sotomayor might find these of interest:

• Sotomayor’s strange belief that there are no adjectives in Spanish.

• Sotomayor’s quota mentality for judgeships.

• Sotomayor’s celebration of the “importance of indefiniteness in the law.”

• The White House’s scramble, immediately after Obama announced that he had picked Sotomayor, to assure abortion supporters that she was a strong supporter of Roe v. Wade.

• Sotomayor’s past as a Puerto Rican nationalist and her later support for (in the words of one critic) an “affirmative action plan for Puerto Rico” statehood.

• Sotomayor’s revelation, in her written responses to post-hearing questions, that her testimony that judges must “not make the law” was meaningless wordplay.

***

Before moving on to Barack Obama’s second Supreme Court nomination, I’m going to take a diversion into other confirmation-related matters that I hope you will find of interest.

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***

The day after Sonia Sotomayor’s confirmation hearing ended, Senator Bob Bennett, the junior Republican from Utah, became the first senator to announce that he would vote against Sotomayor’s nomination.

Bennett’s race to the front of the pack was in many respects unusual. Unlike his senior colleague Orrin Hatch, Bennett wasn’t on the Judiciary Committee and hadn’t been vocal on judicial nominations during his sixteen years in the Senate. Hatch and Bennett had a good relationship, and Bennett would ordinarily follow Hatch’s lead on judges, not move ahead of him. Bennett was mild in manner, not someone who liked to attract attention.

Back in 1998, when 29 Republicans had voted against Sotomayor’s nomination to the Second Circuit, Bennett (like Hatch) had been among the 25 Republicans who voted for her. I of course don’t mean to suggest that his vote on her appellate nomination meant that he should be expected to vote for her Supreme Court nomination in 2009. My much narrower point is that you wouldn’t have expected him to be the first Republican to declare that he would be voting no.

But Tea Party activists were unhappy with Bennett. As a senior member of the Senate Banking Committee, he had angered them by pushing for a massive bank bailout in 2008. Worse, he had co-sponsored with liberal Democratic senator Ron Wyden a health-care reform bill that they saw as paving the way for Obama’s health-insurance initiative.

Bennett was up for re-election in 2010, and he knew that he would face a serious challenge in getting his own party’s nomination. Utah’s state attorney general, who was elected to a third term in 2008 by a massive margin, had already launched his own campaign for Bennett’s seat, and an early poll showed him to be in “essentially a dead heat” with Bennett.

So Bennett was determined to oppose Sotomayor and evidently figured that he might win extra credit for doing so right away. He emphasized gun rights, a popular issue in Utah, as his primary reason for opposing her: “I cannot reconcile my strong belief that the Constitution guarantees the right to bear arms with Judge Sotomayor’s stated belief that the Second Amendment is not a ‘fundamental right.’”

***

As I have explained, Republican senators back in the early years of Bill Clinton’s presidency might reasonably have calculated that deferring to Clinton’s Supreme Court picks provided the easiest path to re-election. If your focus was on defeating your Democratic opponent, then voting for Ruth Bader Ginsburg and Stephen Breyer would enable you to win credit from moderates and independents and to avoid creating a controversy that your opponent might exploit.

But the political situation for Republican senators, including conservatives like Bob Bennett, had dramatically changed by 2009. Tea Party activists were eager to challenge incumbent Republicans from the right. So Republican senators had to do their best to guard against that threat.

Twelve Republican senators were running for re-election in 2010. All twelve voted against Sotomayor’s nomination.

***

Alas for Bob Bennett, his stand against Sotomayor wasn’t enough to salvage his political career. Bob Bennett had won re-election in 2004 with 69% of the vote. But in May 2010, he finished in third place at his party’s convention and didn’t make it to the primary run-off.

Tea Party favorite Mike Lee was elected to the Senate in November 2010.

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Sometimes the target audience for my Bench Memos blog posts is very small, but this might be the only time that I was aiming to reach just one person. And I wanted to reach him quickly. Republican leader Mitch McConnell announced that afternoon that he would be voting against Sotomayor. So who knew when Hatch might declare his position?

***

Late Friday evening, I published two posts.

In the first, titled “Sotomayor’s Snookering of Graham and Hatch on PRLDEF Abortion Briefs,” I presented Sotomayor’s implausible testimony on the extreme position on abortion taken by the Puerto Rican Legal Defense and Education Fund during Sotomayor’s tenure on its board. Sotomayor had responded to questions from Senator Lindsey Graham and Senator Hatch. “Is it remotely conceivable,” I asked, “that a board member with a 12-year tenure—a lawyer, no less, who was actively involved in PRLDEF’s legal efforts [—] would be unaware of that position?” To increase my chances of getting Hatch’s attention, I added:

Or was Sotomayor trying to snooker Graham and Hatch? And did she succeed?

In the second post, “Sotomayor’s Cover-Up on Foreign Law,” I completed my account of Sotomayor’s “incredible obfuscation of her support of freewheeling resort to foreign and international law to redefine the meaning of provisions of the American Constitution.” I knew that this was an issue that Hatch cared a lot about.

Late the following Monday, Sotomayor submitted her responses to written questions from Republican senators. I was heading away on a family vacation the following morning but raced to do a late-night post showing how her responses on foreign law showed that her “oral testimony ought to be recognized to be scandalously deceptive and to provide sufficient cause for any senator to oppose her confirmation.”

***

One week later, I was driving to the airport to return home from my vacation when I noticed that I had received a voicemail. At a stoplight, I listened to the voicemail:

Ed, this is Orrin. How doggone stupid do you think I am?

Yes, he actually said doggone. In my amusement, I didn’t pay close attention to what he said after that, but I’m sure that he complained that I underestimated his grasp of Sotomayor.

The timing of Hatch’s call was telling. As I was to discover, that same morning he had finally committed himself publicly to opposing Sotomayor, as he joined his fellow committee Republicans (all but Graham) in voting against favorably reporting Sotomayor’s nomination to the Senate floor.

In his statement, Hatch implicitly repudiated the deference standard that he had applied to the nominations of Ruth Bader Ginsburg and Stephen Breyer when I worked for him in 1993 and 1994. On top of legal experience and academic and professional achievement, he said, a nominee’s “qualifications also include the more important element of judicial philosophy, or a nominee’s proper understanding of the power and proper role of judges in our system of government.” Hatch faulted Sotomayor for “troubling statements that appear to conflict with the impartiality … that the oath of judicial office requires.” He criticized her for “saying that foreign law will be ‘very important’ in thinking about legal issues.”

Back at work the following day, I wrote about the committee vote and happily gave Hatch credit: “I’d especially like to highlight that I was wrong in thinking that Sotomayor’s deceptive testimony had snookered Senator Hatch.”

***

If you had told me back in 1993 or 1994 that Senator Hatch would vote against the first Hispanic nominee to the Supreme Court—and a female, at that—I would not have believed you. That he did so powerfully illustrates how Republican senators shifted from deferring to a Democratic president’s power to select nominees to fighting those nominees on the ground of judicial philosophy.

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Two other reasons reflect fundamental changes in the politics of the Supreme Court confirmation process itself.

First: The “deference” approach that Senate Republicans had taken to Ginsburg’s nomination (and to Stephen Breyer’s in 1994) was no longer tenable or attractive. Most Republicans were drawn or driven to focus on a nominee’s judicial ideology.

Second: As the Senate re-sorted along ideological lines, the Senate Republican cohort was becoming much more homogeneously conservative.

***

At the end of my clerkship with Justice Antonin Scalia in 1992, I made the unorthodox decision to become a Senate staffer because I wanted to help fight on judicial nominations. Senator Orrin Hatch would be taking over as the senior Republican on the Senate Judiciary Committee in January 1993, and I wanted to assist him in supporting good judicial nominees if George H.W. Bush was re-elected or in opposing bad ones if (as I expected) Bill Clinton became president.

As I’ve recounted (in “That Sure Wasn’t in My Talking Points: Why I nearly fell off my chair”), it was quite a shock to me to discover that Hatch was eager to signal to Clinton that he wouldn’t be fighting Supreme Court nominees over judicial philosophy. Under the deference approach that Hatch applied (and encouraged other Republicans to apply), a senator deciding whether to support or oppose a nominee should ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience.

A senator who adopts the deference approach doesn’t want a Supreme Court nomination to become controversial. He has no interest in exposing aspects of the nominee’s record that will upset his own political base. So it was that Hatch and other pro-life Republicans on the Judiciary Committee didn’t want to make Ginsburg’s record on abortion prominent.

***

I had much more success in spurring Hatch and other Republicans to fight against Clinton’s appellate nominees on the ground of judicial philosophy, especially Eleventh Circuit nominee Rosemary Barkett and Third Circuit nominee Lee Sarokin. Both Barkett and Sarokin were confirmed, as we knew they would be. But we wanted to make Senate Democrats pay a political price for supporting them, and I think that it’s clear that we succeeded.

On top of the votes against Barkett from 36 of the 44 Republican senators, Robert Byrd, the Senate Democratic leader during the Reagan and Bush 41 presidencies, also voted against her. The Sarokin vote was much more striking. With the 1994 elections one month away, six Democrats ended up voting against Sarokin. And they weren’t just any six Democrats. In addition to Byrd, they included majority whip Wendell Ford, future Democratic leader Harry Reid, and, perhaps most notably, a three-term senator from Tennessee, Jim Sasser, who envisioned becoming the Senate majority leader in 1995 after winning re-election to a fourth term.

Political novice Bill Frist made Sasser’s support of bad judges a prominent part of his campaign. He faulted Sasser for recommending Jimmy Carter’s appointment of a federal district judge in Nashville, John T. Nixon, who Frist said had “repeatedly hamstrung the courts by delaying action in death penalty cases,” and he charged that Sasser’s vote for Rosemary Barkett’s nomination showed that “he still hasn’t learned his lesson.” When Frist called on Sasser to vote against Sarokin, Sasser determined that he couldn’t afford to vote for Sarokin and, indeed, that he had to do his best to pretend that he was vehemently against Sarokin. It didn’t work. In a huge upset, Frist defeated Sasser by more than 14 points.

More broadly, Republican Senate candidates in 1994 made Clinton’s lower-court nominations part of their campaigns. Election Night in 1994 was a shocker, as Republicans won control of the Senate by gaining eight seats (as well as control of the House for the first time in decades). Senate Republicans were learning that they could score political points fighting against liberal judicial nominees.

I’ve documented in dozens of posts how Senate Republicans were driven to fight over judicial philosophy in the years from 1994 up to Barack Obama’s presidency and how they won big victories in those fights. So it was entirely predictable that they would challenge Sonia Sotomayor’s nomination on that ground, and Sotomayor’s record provided lots of ammunition. Given the force that Roe v. Wade had with the conservative base, Republican senators had ample incentive to add abortion into the mix.

***

Now that the parties have broadly polarized over ideology, it’s easy to forget how different things were at the time of Ginsburg’s confirmation hearing in 1993. Of the 44 Republican senators, a good 15 or more might be characterized as moderate to liberal. That group included Arlen Specter, Robert Packwood, and John Warner, all of whom voted against Robert Bork’s confirmation in 1987. Only four of the eight Republicans on the Judiciary Committee were pro-life and anti-Roe.

By the time of Sotomayor’s confirmation hearing in 2009, the number of moderate-to-liberal Republicans had dwindled to a half dozen or so, and all seven of the Republicans on the Judiciary Committee were pro-life and anti-Roe. The change is perhaps best encapsulated in Arlen Specter’s decision to abandon the Republican party—and his position as senior Republican on the Judiciary Committee—to become a Democrat just one month before Obama nominated Sotomayor.

It’s much easier to undertake to fight a nomination on ideological grounds when your party is broadly unified on ideology.

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When Graham joined the Senate in 2003, he became a junior member of the Senate Judiciary Committee. Over the next two decades, he took part in the confirmation hearings of eight of the nine current Supreme Court justices, including as the committee’s chairman for Amy Coney Barrett’s hearing in 2020. Graham voted to confirm seven of the eight—all but Ketanji Brown Jackson.

Graham had a striking impact on the Senate’s confirmation of four Supreme Court justices. In one case, he had to power his way past a large blunder. Without his contributions, the composition of the Court might well be very different.

***

Graham made his mark on Samuel Alito’s confirmation in two large ways.

In May 2005—barely two years into his Senate tenure—Graham was one of the architects of the “Gang of 14 Agreement.” The bipartisan Agreement preempted the effort by Senate Republicans to abolish the filibuster for judicial nominations. Its seven Republican signatories agreed not to support the effort to abolish the filibuster. In exchange, its seven Democrats signatories committed to support cloture on three specific nominees who had been filibustered as well as on “future judicial nominations” in 2005 and 2006 that did not present “exceptional circumstances.”

As we have seen, on the heels of John Roberts’s confirmation as chief justice, George W. Bush very much wanted to nominate Fifth Circuit judge Priscilla Richman Owen to the seat being vacated by Justice Sandra Day O’Connor. If the filibuster had been abolished, the Republican majority in the Senate would very likely have confirmed her nomination, and Judge Alito would never have become Justice Alito. But with the filibuster still in place, Bush was warned (in his words) that the “the fight [over her nomination] would be bloody and ultimately she would not be confirmed.” So he passed over her, initially for Harriet Miers and then for Alito.

When Bush nominated Alito, the Gang of 14 Agreement meant that the White House could avoid a filibuster by persuading its Democratic signatories (or at least five of the seven) that the Alito nomination did not present “exceptional circumstances.” Meanwhile, the division among Senate Democrats that was manifested in the Gang of 14 Agreement meant that liberal senators who opposed Alito had to take a passive wait-and-see approach on whether to try to filibuster him. As a result, the momentum for a serious filibuster effort never developed.

Graham also triggered the most dramatic moment in Alito’s hearing. As I recount more fully here, Ted Kennedy and other Democrats were seizing on Alito’s brief membership in a conservative Princeton alumni group to brand him as a bigot. When Graham repudiated their allegations of bigotry, Alito’s wife Martha-Ann was so overcome with appreciation of Graham’s simple decency that she fled the hearing room in tears.

Republican staffers on the Judiciary Committee tell me that was the moment at which the tide shifted decisively in Alito’s favor. In the words of one staffer, “It’s hard to overstate what a turning point it felt like.” Democrats also saw the episode as critical:

“Had she not cried, we would have won that day,” said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats’ problems. “It got front-page attention. It was on every local news show.” [New York Times, 1/15/06]

***

Lindsey Graham also helped pave the way for confirmation of Donald Trump’s nomination of Neil Gorsuch in 2017. He did so, first, by supporting Senate majority leader Mitch McConnell’s decision not to act on any nomination by Barack Obama to fill the vacancy that resulted from Antonin Scalia’s death in February 2016. Among other things, Graham and his fellow Committee Republicans signed a letter to McConnell on February 23 setting forth their commitment not to hold a hearing on any nominee.

If Obama had succeeded in filling the Scalia seat, Donald Trump would of course not have had the opportunity to nominate Gorsuch to that seat. Indeed, given the important role that the vacancy played in the presidential election and the tight margin, he probably would not have been elected.

When Senate Democrats tried to filibuster Gorsuch’s nomination in April 2017, Graham was influential in the successful Republican effort to abolish the remaining portion of the judicial filibuster—for Supreme Court nominees—that Senate Democratic leader Harry Reid had opportunistically left in place. Graham had special clout on this matter with undecided Republicans, both because he had prevented abolition of the judicial filibuster in 2005 and because he had voted for Barack Obama’s nominations of Sonia Sotomayor and Elena Kagan. As he put it:

Judge Gorsuch is qualified, competent and ready to serve. If he cannot get eight Democrats to vote for cloture (ending a filibuster) on his nomination, then I doubt any Republican nominee could.

I’m a traditionalist and I don’t want to change the rules of the Senate. But Judge Neil Gorsuch is going to be on the Supreme Court, and I’m prepared to do whatever it takes to put him there.

After Democrats defeated a cloture motion on Gorsuch’s nomination, Republicans abolished the filibuster for Supreme Court nominees. The Senate then invoked cloture and confirmed Gorsuch.

***

If the filibuster for Supreme Court nominees had remained in effect, it’s highly doubtful that Trump would have nominated Brett Kavanaugh in July 2018, and it’s difficult to see how Kavanaugh would ever have been confirmed.

Graham’s greatest episode came during the second phase of Kavanaugh’s hearing, when he passionately decried “the most despicable thing I have seen in my time in politics”:

As my Ethics and Public Policy Center colleague (and former Graham staffer) Michael Fragoso sums up “Graham’s finest hour”:

[Graham] gave a speech for the ages. He called out the Democrats for their outrageous character assassination. He pointed out that Chuck Schumer had said he’d try to stop Kavanaugh from the word go. He told Kavanaugh to give his regards to Sotomayor and Kagan because he voted for them but those days were behind him. It was a speech that changed the tenor and course of the hearing, getting Republicans off the back foot and ready to fight the Democrats over their unconscionable behavior.

Another senior Senate staffer recalls:

By the end of Senator Graham’s speech, I was ready to run through a wall. And I had no doubt we were gonna win. This confirmation was my formative experience in politics, and Senator Graham’s speech was the most important moment.

***
Let’s now turn to Graham’s surprising—and potentially very costly—blunder.

A defining feature of the 2016 battle over the Scalia vacancy was that President Obama and the Senate majority were from opposing political parties. It was likewise in this opposite-party context in a presidential-election year, way back in 1992, that Joe Biden, then chairman of the Senate Judiciary Committee, delivered a lengthy Senate floor statement in which he urged President Bush not to make a nomination if a Supreme Court vacancy arose, and he threatened not to hold a hearing on any nominee until after the election.

It was in this same context—anticipating a Supreme Court nomination by a president of one party to a Senate controlled by the other party—that Democratic senator Chuck Schumer publicly stated in July 2007 that the Senate “should not confirm another U.S. Supreme Court nominee under President [George W.] Bush ‘except in extraordinary circumstances.’” And, indeed, Kathryn Ruemmler, Obama’s White House counsel from 2011 to 2014, candidly acknowledged that if the political roles had been reversed—that is, a Republican president and a Democratic majority in the Senate—she would have recommended that Senate Democrats take exactly the course that Senate majority leader Mitch McConnell pursued.

It’s unimaginable that Biden in 1992 or Schumer in 2007 would have made their statements if a Democrat were president. It’s likewise unimaginable that Mitch McConnell would have committed to keep the Scalia vacancy open in 2016 if a Republican were president. None of them pretended otherwise.

Yet Graham somehow missed this fundamental point, and he did so very starkly. At a committee meeting in March 2016 (six days before Obama nominated Merrick Garland), Graham declared:

I want you to use my words against me. If there’s a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.

In October 2018, three days before the Senate confirmed Kavanaugh’s nomination, Graham repeated that promise:

If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.

In his evident desire to display fairness, Graham missed that genuine symmetry would mean merely that if Democrats controlled the Senate in the last year of a Republican president’s term, Graham would acknowledge that they had the constitutional power to refuse to act on a nomination to a vacancy that arose that year.

Graham became chairman of the Judiciary Committee in 2019. His position might well have made him more keenly aware of his institutional responsibilities to other Republican senators. In an interview in May 2020, he corrected course and stated that the Senate would act on a Supreme Court nomination if a vacancy arose:

Well, Merrick Garland was a different situation. You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different. I don’t want to speculate, but I think appointing judges is a high priority for me in 2020.

Justice Ruth Bader Ginsburg died on September 18, 2020. President Trump announced his nomination of Amy Coney Barrett on September 26. In the midst of the covid epidemic, Graham arranged for the Barrett hearing to begin 16 days later, on October 12. At the end of the hearing, Dianne Feinstein, the senior Democrat on the committee, thanked Graham for running “one of the best set of hearings that I’ve participated in.” On October 26, the Senate confirmed Barrett’s nomination by a vote of 52-48, with Susan Collins joining all Democrats in voting no.

If the filibuster for Supreme Court nominees had not been abolished, there is no way that the Senate would have been able to confirm anyone for Ginsburg’s seat unless that person had the support of at least seven Democratic senators.

***

The current Supreme Court is very much part of Lindsey Graham’s legacy. May he rest in peace.

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***

It’s instructive to compare the role of abortion in Sonia Sotomayor’s confirmation to its role in Ruth Bader Ginsburg’s confirmation 16 years earlier. In both instances, a Democratic president with a deep commitment to Roe (Bill Clinton for Ginsburg, Barack Obama for Sotomayor) had an overwhelming Democratic majority in the Senate (56 Democratic senators in 1993, 59 or 60 at relevant times in 2009). Confirmation of the nominee was as certain as anything in politics could be.

Before becoming a judge, Ginsburg strongly criticized the Supreme Court’s 1977 ruling in Maher v. Roe that the Constitution does not require taxpayers to fund abortions. Just three months before Clinton nominated her, Ginsburg gave a lecture in which she cited Roe as the “most prominent example” of a “breathtaking” decision that “may prove unstable” because its “[d]octrinal limbs [were] too swiftly shaped.” But as Clinton clearly understood, Ginsburg fully supported a constitutional right to abortion. She would have preferred a ruling in Roe that “homed in more precisely on the women’s equality dimension of the issue” and that “merely struck down the extreme Texas law and went no further on that day.” Such a ruling, she believed, “might have served to reduce rather than to fuel controversy.”

In her opening statement at her hearing, Ginsburg declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” But Ginsburg departed most starkly from that commitment when she spelled out her Equal Protection theory for a constitutional right to abortion (hearing transcript at 207-208):

It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex….

Abortion prohibition by the State … controls women and denies them full autonomy and full equality with men.

No Republican senators raised questions or concerns about Ginsburg’s views on abortion in their opening statements. Nearly all of the questioning of Ginsburg on the topic of abortion came from supporters of abortion rights (including Republican senator Hank Brown). Only Orrin Hatch (for whom I was then working) challenged Ginsburg on abortion, and he did so primarily on the question whether she would abide by the Court’s precedents that the Constitution does not require funding of abortion.

Things were very different at Sotomayor’s confirmation hearing.

Before becoming a judge, Sotomayor served for twelve years as a member of the board of the Puerto Rican Legal Defense and Education Fund, sometimes as the chairman of its litigation committee. The New York Times in 1992 described her as “a top policy maker on the board.” Another NYT article, just after Obama nominated Sotomayor, said that she “stood out” among the “active and passionate” board members: She “was an involved and ardent supporter of [PRLDEF’s] various legal efforts during her time with the group,” “frequently meeting with the legal staff to review the status of cases” and “play[ing] an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.” PRLDEF’s “aggressive stances” extended to the realm of abortion. During Sotomayor’s tenure, PRLDEF submitted amicus briefs that supported taxpayer funding of abortion and “oppose[d] any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”

In their opening statements, Senator Jeff Sessions, the senior Republican on the Judiciary Committee, and Senator Lindsey Graham expressed concerns about the PRLDEF briefs. Graham and three other Republican senators questioned Sotomayor on abortion. After the hearing, four of the Republican senators submitted extensive written questions to Sotomayor on the topic.

It’s amusing to see how Sotomayor tried to distance herself from the PRLDEF briefs. She explained to Senator Graham that at PRLDEF “a board member’s main responsibility is to fund-raise,” and she denied even being “familiar” with PRLDEF’s position on taxpayer-funded abortion. So much for NYT’s account of her “involved and ardent” support of PRLDEF’s “various legal efforts.” She even contended that the only question for her as a board member was whether there was “a good-faith basis for whatever arguments [PRLDEF’s lawyers] were making.” As if the board weren’t responsible for setting policy but was instead merely assuring that its lawyers weren’t acting unethically.

Unlike Ginsburg, Sotomayor studiously avoided any comment supporting a constitutional right to abortion. Even when a Democrat asked her whether Roe was “settled law,” she answered only that the Court in Planned Parenthood v. Casey said it was. And even that answer was rendered meaningless by her global declaration that “All precedents of the Supreme Court I consider settled law subject to the deference [which the] doctrine of stare decisis would counsel.” (My point here, I emphasize, is not to fault Sotomayor for her answers on “settled law,” which adopted the approach that John Roberts took and that other nominees have followed. It is, rather, to contrast Sotomayor’s reticence with Ginsburg’s robustness.)

***

What explains the difference between Ginsburg and Sotomayor? I’d propose three interconnected factors:

(1) The politics of the pro-life position on abortion improved considerably between 1993 and 2009.

(2) Senate Republicans had abandoned the “deference” approach to a Democratic president’s nomination of a Supreme Court justice and had instead made a nominee’s judicial philosophy a critical factor.

(3) The Senate had re-sorted along ideological lines.

I’ll address the first factor here and the other two in a follow-on post.

***

In 1993, pro-life senators were deeply demoralized. The Supreme Court had been widely expected to overrule Roe in its 1992 decision in Planned Parenthood v. Casey but had instead broadly re-affirmed it. (I was a law clerk for Justice Scalia that term.) The Court’s ruling appeared to mark the demise of the conservative legal revolution that Ronald Reagan had inaugurated, as two Reagan appointees (Sandra Day O’Connor and Anthony Kennedy) combined with a George H.W. Bush appointee (David Souter) to salvage Roe. The prospect that Roe would ever be overturned seemed lost.

By 2009, the pro-life position had become much more politically appealing. According to Gallup, the percentage of Americans who believed that abortion should be legal “under any circumstances” had fallen from 32% in March 1993 to 22% in May 2009.

Much of the shift was due to the atrocity of partial-birth abortion.

Partial-birth abortion is the name given to a method of late-term abortion in which the abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs scissors into the head, sucks out the baby’s brains, collapses the baby’s skull, and delivers the dead baby.

This barbarity was inflicted up to 5,000 times a year in this country—generally on healthy babies of healthy mothers. Planned Parenthood and its allies routinely claimed that partial-birth abortion was “rare and performed primarily to save the lives or fertility of women bearing severely malformed babies” (in the New York Times’s paraphrase of a typical claim). But in 1997 the New York Times reported that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, admitted that he had “lied through my teeth” in parroting that claim. In truth, “the procedure was common,” and “[i]n the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along.” In Fitzsimmons’s words, “The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.”

In the mid-1990s, Congress twice passed federal bans on partial-birth abortion, but President Clinton vetoed both of them. In 2000, the Court, by a vote of 5 to 4, ruled in Stenberg v. Carhart that a Nebraska ban on partial-birth abortion was unconstitutional. The substantive prohibition in the Nebraska law was identical to that in the federal bill, but in a healthy rejection of the myth of judicial supremacy (in which I played a bit role at the Department of Justice), bipartisan majorities in Congress enacted the federal ban in 2003, and President George W. Bush signed it into law. Among the 17 Democratic senators who voted for the law were Democratic leader Tom Daschle and senior Judiciary Committee members Patrick Leahy and Joe Biden.

In 2007, with Justice Samuel Alito having replaced Justice Sandra Day O’Connor, the Court reversed course and ruled (by a vote of 5 to 4) in Gonzales v. Carhart that the federal ban on partial-birth abortion was facially constitutional. In dissent, Justice Ginsburg predicted that as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [law’s] prohibition.” But as I pointed out a year later (in “The Mystery of the Missing Lawsuits”), those challenges never arose, presumably because the medical evidence that the abortion industry vaunted was in fact very feeble.

***
The Left’s extremism on abortion backfired spectacularly on judicial confirmations during these same years.

Liberal Democrats had aimed to stigmatize as unacceptable any of George W. Bush’s judicial nominees who was thought to oppose Roe. As we have seen, that’s why they filibustered the Eleventh Circuit nomination of William H. Pryor Jr., who at his confirmation hearing courageously stood by his condemnation of Roe as “the worst abomination in the history of constitutional law” and decried that it had “led to the slaughter of millions of innocent unborn children.” But when more moderate Democrats helped form the bipartisan “Gang of 14 Agreement” in May 2005, they agreed to list Pryor among the three nominees for whom they committed to support cloture. They thus expressly recognized that it was not disqualifying for an appellate nominee to hold the view of Roe that Pryor expressed.

When Bush nominated Samuel Alito to the Supreme Court in late 2005, the Gang of 14 Agreement and its protection of Pryor in turn put Democrats at a severe disadvantage in their hope of defeating Alito by filibuster. Democrats couldn’t have hoped for better ammunition to be handed them than Alito’s 1985 job application in which he declared that he “personally believe[d] very strongly” that “the Constitution does not protect a right to an abortion.” But none of the seven Democratic signatories to the Gang of 14 Agreement suggested that Alito’s nomination presented “extraordinary circumstances” that would justify a departure from their general opposition to a filibuster.

Democratic leader Harry Reid recognized that there was no point in fighting a losing battle over the filibuster, so it was left to John Kerry to earn mockery by yodeling for a filibuster from his ski resort in Davos, Switzerland.

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5. The Supreme Court Nominee Who Would Abolish Mother’s Day: How I hid Ruth Bader Ginsburg’s incendiary positions

4. Judicial Retirements and Judicial Vacancies: Exploring the Rule of 80

3. Teddy Roosevelt Quickly Regrets Appointing Justice Holmes: “I could carve out of a banana a judge with more backbone”

2. Larry Tribe Slams Sotomayor to Obama: “Bluntly put, she’s not nearly as smart as she seems to think she is”

And …

1. Ruth Bader Ginsburg’s “Inexorable Zero” of Black Employees: “What if she says yes?”

May you enjoy a wonderful Fourth of July!

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10. Joe Biden Embarrasses Elena Kagan (and I Console Her): Even an excellent teacher can do only so much with a dim pupil

9. George W. Bush Makes a Shocking Supreme Court Nomination: How it happened

8. Ninth Circuit Contender Is Exposed as Pretender: The collapse of Bill Clinton’s nomination of James Ware

7. Sotomayor’s Account of Her Judicial Philosophy Appalls Progressives: ‘If she was not perjuring herself, she is intellectually unqualified’

6. A Not-So-Wise Reflection on a ‘Wise Latina’ Judge: Sotomayor’s comment arouses controversy

Hope you enjoy these! I’ll complete the countdown next week.

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Maybe you’re a judge (or former judge) who had something amusing or appalling happen in your own confirmation process.

Maybe you worked on judicial selection in the White House or in the Department of Justice. Maybe you helped prep nominees for their confirmation hearings.

Maybe you’re a senator or Senate staffer who met with a nominee during the meet-and-greets or who observed something remarkable at a hearing.

Maybe you’re a family member or friend of someone who went through the process.

Maybe you were a candidate for a nomination but lost out.

If you have a story that you’d like to discuss with me, please email me at ethics@eppc.org, put “Confirmation Tales” in the subject line, and briefly describe what the story involves.

I promise to keep our exchange strictly confidential; I will make no use of what you tell me without first receiving your express and specific permission. If you have good reason to keep your story anonymous, I will be happy to work to accommodate you.

I especially welcome stories from those with political or judicial ideologies different from my own.

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***

In their opening statements, several Republican senators stated their strong opposition to judges’ reliance on foreign and international law in interpreting provisions of the Constitution, and two specifically criticized Sotomayor’s recent speech on the topic to the ACLU of Puerto Rico. So Democratic senator Chuck Schumer undertook to preempt hostile questioning by asking his own questions of Sotomayor.

The exchange between Schumer and Sotomayor (pp. 132-133 of hearing transcript) is remarkable in its brazenness. Schumer began by alleging that Sotomayor’s critics had “selectively quoted” her ACLU speech, and he then selectively quoted it:

You gave a speech in April that has been selectively quoted, discussing whether it is permissible to use foreign law or international law to decide cases. You stated clearly that, ‘‘American analytic principles do not permit us,’’ that is your quote, to do so.

Here’s the actual passage in Sotomayor’s speech, with the key part that Schumer omits in boldface:

I’m going to try first to understand the way that American law is structured against the use of foreign and international law. Because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

Quoting that last sentence would have required Schumer to probe the unintelligible distinction that Sotomayor had posited between “us[ing]” foreign and international law and “consider[ing] the ideas that are suggested by” foreign and international law.” Schumer instead asked:

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

Lest I be accused of selectively quoting Sotomayor’s response, I will quote it in full (and boldface some passages):

American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given, and my speech explained that, as you noted, explicitly.

There is no debate on that question. There is no issue about that question. The question is a different one, because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that.

In fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty and there’s a question of what the treaty means, then courts routinely look at how other courts of parties who are signatories are interpreting that.

There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that’s going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law then is different than considering the idea that it may, on an academic level, provide. Judges— and I’m not using my words. I’m using Justice Ginsb[u]rg’s words. You build up your story [sic] of knowledge as a person, as a judge, as a human being with everything you read. For judges, that includes law review articles and there are some judges who have opined negatively about that. You use decisions from other courts. You build up your story [sic] of knowledge.

It is important, in the speech I gave, I noted and agreed with Justices Scalia and Thomas that one has to think about this issue very carefully, because there are so many differences in foreign law from American law. But that was the setting of my speech and the discussion that my speech was addressing.

Far from there being “no debate on that question,” there was in fact a raging debate on whether judges may look to foreign or international law to interpret the Constitution. A good chunk of Sotomayor’s ACLU speech addressed the uncontroversial practice of looking to foreign and international law when American law directs you to do so. But the controversial part came toward the end, where Sotomayor spoke approvingly of how “We have looked in some Supreme Court decisions to foreign law to help us decide our issues”—and where she cited Eighth Amendment and substantive due process rulings as examples of using foreign or international law to interpret the Constitution.

The distinction that Sotomayor purports to draw between “use of foreign law” and “considering the idea that it may, on an academic level, provide” makes no sense when the judge is not operating as an academic but is instead drawing on foreign law to make rulings on constitutional issues. (Note that Sotomayor herself says that “You use decisions from other courts.”)

***

In an exchange with Republican senator John Coburn, Sotomayor emphatically reiterated her response to Schumer:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law. [Emphasis added.]

Republican senator Jeff Sessions asked Sotomayor:

There has been a fairly robust, roaring debate over this question. There are basically two sides, one led by Justice Ginsburg and one led by Justices Scalia and Thomas. Don’t you think a fair reading of [your speech] is that you came down on the side of Justice Ginsburg?

Sotomayor denied it. (If you’re a glutton for gobbledygook, you can read her response on p. 396 of the transcript.) Never mind that in her speech she said that Scalia and Thomas had “a point that is validly taken, but I think I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.”

In his second exchange with Sotomayor, Coburn asked her to “affirm to this Committee and the American public that, outside of where you are directed to do so through statute or through treaty, [you will] refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write.” Sotomayor responded:

I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.

***

The categorical commitments that Sotomayor made in her live testimony did not last long. One week later, in her responses to post-hearing written questions (see, e.g., transcript at 633-634), Sotomayor retreated to the position that “American courts should not ‘use’ foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent.” In other words, her real position—the position that she set forth in her April speech but obscured and dissembled about throughout the hearing—was that it’s fine for American judges to use foreign and international law so long as they don’t treat it as binding. (No intelligent critic of the judicial use of foreign and international law is under the misunderstanding that its proponents treat it as binding; rather, the utter malleability of its use is one of the grounds of criticism.)

***

Less than a year later, Sotomayor provided the decisive fifth vote for Justice Anthony Kennedy’s majority opinion in Graham v. Florida (2010). In holding that the Eighth Amendment does not allow a “juvenile offender” (someone under 18 at the time of the crime) to be sentenced to life in prison without parole for a nonhomicide crime, Kennedy found “support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.” To be sure,

The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But the climate of international opinion concerning the acceptability of a particular punishment is also not irrelevant. [Cleaned up.] …

[T]he United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders…. As we concluded in Roper [v. Simmons (2005)] with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders….

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

So much for Sotomayor’s solemn commitment to Senator Coburn and to the American people.

***

If hypocrisy is the homage that vice pays to virtue, Sotomayor’s deceptions illustrate the homage that liberal judicial nominees pay to conservative judicial principles.

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In late April 2009, just three days before Justice David Souter announced his retirement, Sonia Sotomayor gave a terribly muddled speech in which she defended resort to foreign and international law to decide legal issues generally. That speech ensured that the topic would be prominent in her battle for confirmation.

***

Justice Anthony Kennedy’s majority opinion in Roper v. Simmons (2005) and Justice Antonin Scalia’s dissent helpfully frame the dispute over use of foreign and international legal materials.

Writing for a five-justice majority, Kennedy ruled that the Eighth Amendment’s bar on “cruel and unusual punishments” prohibits the execution of a brutal murderer who was 17 years old at the time of his crime. In Part IV of his opinion, Kennedy found “respected and significant confirmation” for his conclusion that the Constitution bars the death penalty for juvenile offenders “in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Notably, Kennedy invoked Article 37 of the United Nations Convention on the Rights of the Child, which “contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” Kennedy thought that the fact that the United States, alone with Somalia in the world, had not ratified Article 37 supported his conclusion that the death penalty for juvenile offenders is unconstitutional. Kennedy concluded his discussion with this declaration:

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Scalia in his dissent confronted head-on the remarkable “confirm[ing] role that Kennedy awarded the “world community” in his determination that the Eighth Amendment forbids the death penalty for juvenile offenders:

• “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.”

• As for Kennedy’s reliance on Article 37 of the U. N. Convention on the Rights of the Child: “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.”

• “More fundamentally, … the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it.” Scalia proceeded to point out that the Court has never sought to follow foreign law on matters ranging from the exclusionary rule to church-state relations to abortion. “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

• With respect to Kennedy’s closing oration: “I do not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles any more than (what should logically follow) disapproval by ‘other nations and peoples’ should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage.’ To the contrary, they are cited to set aside the centuries-old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.” (Emphasis and brackets in original.)

***

Justice Ruth Bader Ginsburg and Justice Stephen Breyer, who both joined Kennedy’s opinion in Roper, also spoke out publicly to defend the use of foreign law in interpreting constitutional provisions generally. As it happens, I was criticizing their views in my testimony in the House of Representatives in July 2005 when I learned that George W. Bush would announce that evening that he would nominate John Roberts to the Supreme Court.

The role of foreign and international law in constitutional interpretation played only a small role in Roberts’s confirmation hearing and in Samuel Alito’s hearing some months later. Republican senators condemned the position that Justice Kennedy and his liberal colleagues had adopted. But Democratic senators had no interest in defending it, much less in pressing Roberts and Alito to embrace it.

In response to questioning from a Republican senator, Roberts observed:

In foreign law you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them, they’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they’re finding precedent in foreign law, and use that to determine the meaning of the Constitution.

Alito was even more emphatic:

I don’t think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our Government and it protects fundamental rights. The structure of our Government is unique to our country, and so I don’t think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our Government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human—in fact, I don’t think there were any that protected human rights the way our Bill of Rights did.

We have our own law, we have our own traditions, we have our own precedents, and we should look to that in interpreting our Constitution.

***

Now let’s take a look at the speech (see video and my AI-assisted transcript) that Sonia Sotomayor delivered to the American Civil Liberties Union of Puerto Rico on April 28, 2009. The speech is rife with confusion and camouflage, but Sotomayor’s ardent support for looking to foreign and international law to help determine the meaning of constitutional provisions is unmistakable in the end.

Sotomayor began by positing an unintelligible, but supposedly fundamental, distinction between “us[ing]” foreign and international law and “consider[ing] the ideas that are suggested by” foreign and international law:

I always find it strange when people ask me, “How do American courts use foreign and international law in making their decision?” I pause and say: We don’t use foreign or international law, we consider the ideas that are suggested by international and foreign law. That’s a very different concept.

She repeated this distinction when she explained “the way that American law is structured against the use of foreign and international law”:

Because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

I can make no sense of this distinction. And it was apparently evident to her that her audience couldn’t either, as she asked her translator “do you want to try to translate what I just said?” (It’s conceivable that Sotomayor meant to try to distinguish between treating foreign law as authoritative and looking to it for whatever insights it provides. But if that’s what she meant, her inability to express that simple contrast is astonishing. And no intelligent critic of the Court’s use of foreign and international law thought that the Court was treating it as authoritative.)

In the last third of her talk, Sotomayor embraced the position of Kennedy and Ginsburg against that of Scalia. She missed the core ground of Scalia’s opposition—i.e., that the practice is fundamentally illegitimate because it rests on the unsound premise that American law should conform to the laws of the rest of the world—and instead credited him with a “somewhat valid point” in his secondary objection that “a judge can look to the law of any country to support his or her own conclusion because they'll find somebody to approve or agree with them.” But, she declared,

I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.

Ginsburg is right, she said, that foreign opinions, while “not authoritative,” “can add to the store of knowledge relevant to the solution of a question.” Citing Kennedy’s majority opinions in Roper and in Lawrence v. Texas (2003), Sotomayor approvingly observed: “We have looked in some Supreme Court decisions to foreign law to help us decide our issues.” She then repeated her nonsensical distinction:

In both those cases, the courts were very, very careful to note that they weren't using that law to decide the American question. They were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.

Sotomayor ended her speech by insisting that freedom of speech means that American judges have a duty to consider international and foreign law in deciding cases:

To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas. And to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system…. [W]ithin the American legal system, we’re commanded to interpret our law in the best way we can. And that means looking to what other, anyone has said to see if it has persuasive value.

***

If you find Sotomayor’s views head-spinning, just wait until you encounter her confirmation testimony.

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***

Patrick J. Schiltz, chief judge of the U.S. District Court for the District of Minnesota, was a law clerk to D.C. Circuit judge Antonin Scalia when Ronald Reagan nominated Scalia to the Supreme Court in 1986. Just a year out of law school, Schiltz assisted Scalia throughout the confirmation process and went on to clerk for him during his first term on the Court.

Pat Schiltz and I were friends, classmates, and law-review colleagues at Harvard law school. In organizing the recent AEI-EPPC symposium on Justice Scalia’s extraordinary legacy ten years after his death, I had the opportunity to reconnect with Pat. I was eager to talk with him about Scalia’s confirmation process, and I will draw on his recollections in a later post. But I was especially struck by his story of how he became a law clerk for Scalia.

Q. Antonin Scalia joined the D.C. Circuit in August 1982, weeks before we began law school. Barely a year later, you snagged a clerkship with him for 1985-1986. I’m not sure that I had even heard of Judge Scalia until I learned that you would be clerking for him. How did that come about?

A. The first big step for me was deciding that I should pursue a clerkship. I knew little or nothing about clerking when I started law school. I made the law review on grades at the end of my first year, turned it down because membership would preclude me from participating in the Introduction to Trial Advocacy clinical program (I was certain I wanted to be a trial lawyer), and then was persuaded to accept membership by a few professors and law-review officers. Among the arguments I kept hearing was that being on the law review would help me to get a judicial clerkship, and getting a judicial clerkship would open doors for me. I particularly remember Professor Gary Bellow—who founded HLS’s clinical programs—telling me that, as a law student, I should be opening doors, not closing doors. I’ve been giving the same advice to young lawyers ever since.

Q. How did you become interested in clerking for Judge Scalia specifically?

A. Sometime in the fall of 1983, I decided to start applying for judicial clerkships. I got advice from 3Ls who had been through the process, and they told me that I would need a professor to serve as a reference. I did not know any professors, as almost all of my first-year classes had 140 students, and as I suffered from a severe case of impostor syndrome. Somewhat illogically, I decided to ask Professor Clark Byse—my Administrative Law professor—to be my reference. He was the first-year professor I liked the most, and I figured that, if I liked him, he must have liked me.

I stopped by Professor Byse’s office. He had no idea who I was. He hemmed and hawed and said he didn’t think he could serve as a reference, as he didn’t know anything about me. But we ended up talking for 20 minutes or so, and I later realized that, in between all the hemming and hawing, Professor Byse was interviewing me without my knowing that he was interviewing me. At some point, he brought the conversation to a close and said he’d think about my request.

I walked from Professor Byse’s office to Gannett House—about a three-minute walk. As I climbed the stairs to the second floor (where the law review had its offices), the receptionist told me: “Professor Byse is on hold. He wants to talk to you.” I picked up the phone, said “Hello,” and Professor Byse said: “This is Clark Byse. Judge Scalia will see you tomorrow if you can get to Washington.”

Q. So asking Professor Byse if he would serve as a reference suddenly turned into an interview invitation from Judge Scalia. How did that happen?!?

A. When Judge Scalia was a law student at Harvard in the early 1960s, he had taken Ad Law from Professor Byse, and the two had kept in touch over the years, especially when Judge Scalia worked in the Nixon and Ford administrations. (Judge Scalia chaired the Administrative Conference of the United States for a couple of years in the early 1970s.)

It turned out that, just a couple of days before I stopped by Professor Byse’s office, Judge Scalia had called him. Judge Scalia was not satisfied with the applications he was getting from Harvard, and he wanted Professor Byse to keep an eye out for a student who would be a good clerk and a good match for him. Hence Professor Byse’s non-interview interview of me.

Q. Did you fly to D.C. the next day?

A. No. I called the Scalia chambers, and made an appointment for a couple of days later. I then put together an application and faxed it (we faxed in those days) to the Scalia chambers, as well as to the chambers of some of the other D.C. Circuit judges, explaining that I would be interviewing with Judge Scalia in a couple of days. I quickly got invited to interview with Judge Ruth Bader Ginsburg and with Judge Harry Edwards’s law clerks (he was going to be out of town), but the other chambers said they were not interviewing yet.

Q. What was the Scalia interview like? Did you interview with his law clerks?

A. Interviewing with Judge Scalia then—and during the two years I clerked for him—was nothing like interviewing with him a little later in his career. I did nothing to prepare for the interview, except read over my writing sample. I was not even sure how to pronounce his name. I thought it was pronounced SKAL-ee-ah, but when his judicial assistant referred to him as Judge Sca-LEE-uh, I thought I’d better go with that.

I talked to Judge Scalia first. We talked for about an hour. We talked about law, but mostly we just shot the breeze: about Harvard Law School, about Professor Byse, about politics, about his family, about my family, about our shared Catholic faith. My main memory is how much we laughed. We hit it off.

At the end of the interview, I talked to his law clerks for a few minutes. They pretty much just wanted to know if I had any questions. I was not interrogated. No one asked for my views about the dormant Commerce Clause. No one tore my writing sample to shreds.

I then went back into Judge Scalia’s office, and he said: “I’m not sure what to do. I’d really like you to clerk for me, but I’m afraid if I make you an offer now, you’ll think I’m desperate. So should I make you an offer or not?” We discussed the matter and concluded that, if he wanted me to clerk for him, he would have to offer me a clerkship. So he did.

Q. Did you immediately accept the offer?

A. No. I was going to talk with Judge Ginsburg in a few minutes, and it didn’t seem right to accept an offer from one judge when another had agreed to interview me later that day.

Q. What was the RBG interview like?

A. Nothing like the Scalia interview. When I interviewed with Judge Scalia, he was not wearing a suitcoat, his top button was undone, his tie was askew, his sleeves were rolled up, the top of his desk was a mess, and he was animated. There was, as I said, lots of talk about non-legal matters, and lots of humor.

The top of Judge Ginsburg’s desk was clean, save for my resume, which she had in front of her, and which seemed to be perfectly centered. She sat straight up in her chair during the entire interview, with her hands folded on my resume. She was very nice, but the conversation was formal and almost entirely related to law. After about 20 minutes, she offered me a clerkship, and asked me to get back to her in a day or two. I thanked her and left. I never spoke to her clerks.

Q. So mission accomplished. You had two offers. Time to zip back to Cambridge?

A. No. I then interviewed with the Edwards clerks. They, too, were nice, and they told me that Judge Edwards would be grateful if I would wait until he could interview me before accepting a clerkship offer from another judge. I told them of my offers from Judges Scalia and Ginsburg and that I did not think I could put off a decision. (And although I did not mention this, I could not afford to fly back to Washington. I was dead broke.) They understood.

Q. When did you accept Judge Scalia’s offer?

A. Judge Scalia asked me to stop by his chambers after the other interviews. I told him that I had received an offer from Judge Ginsburg. He spoke highly of her, and told me I could not go wrong choosing between the two offers.

What was most striking, though, was that he asked if there were any other judges for whom I might like to clerk. Idiotically, I told him that the only judge who came to mind was Judge Malcolm Wilkey, who was the leading (really, only) conservative feeder judge on the D.C. Circuit. Rather than being offended, Judge Scalia called Judge Wilkey, told Judge Wilkey that I was sitting in Judge Scalia’s chambers, and encouraged Judge Wilkey to interview me. Imagine one of today’s hyper-competitive appellate judges doing that.

Q. Did you interview with Judge Wilkey?

A. No. In that phone call, Judge Wilkey told Judge Scalia that he was going to retire and therefore he would not be hiring any law clerks. That was the first time Judge Wilkey had told any of his colleagues that he had decided to retire. Judge Scalia seemed startled.

Q. What next?

A. I told Judge Scalia that I wanted to clerk for him. I liked Judge Ginsburg, but I felt a stronger personal connection with Judge Scalia, and he and I were both judicial conservatives. I was worried, though, that accepting Judge Scalia’s offer so soon after talking to Judge Ginsburg would seem insulting.

Judge Scalia told me not to worry. He picked up the phone, called Judge Ginsburg, and said: “Ruth, I’ve got Patrick Schiltz in my office. I told him that he can’t leave until he accepts my offer. He has a plane to catch, so he accepted. Blame me.” I could hear her on the other line telling Judge Scalia that she thought the two of us (that is, Judge Scalia and me) were a great match. She was gracious. Years later, I sat next to her at a dinner for new federal judges. She didn’t remember me, but she was relaxed and candid and funny. Despite our jurisprudential differences, I think I would have enjoyed clerking for her.

Q. It seems that the D.C. Circuit was collegial in 1983.

A. It was remarkably collegial. The judges were smart, they worked hard, they loved the back-and-forth of oral argument and writing opinions, and they got along well. Judge Scalia really missed that when he arrived at the Supreme Court. But that’s a story for another day.

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Why did Sotomayor fail to use her hearing to provide a robust defense of progressive judicial ideas? Why did she instead appall progressives by setting forth a ridiculously wooden description of the judicial role?

The answers provide some broader lessons about Supreme Court confirmation battles.

***
There is an enormous temporal mismatch between the political costs and benefits that a White House perceives a Supreme Court nomination to have, on the one hand, and the value that a Supreme Court appointee has for a president’s political base over the long term, on the other.

The president doesn’t benefit politically from how a justice he appointed performs after the president leaves office. He wants the confirmation process itself to deliver political dividends.

Every White House is replete with staffers who reinforce the president’s bias toward short-term political calculations. That bias affects the president’s selection of a Supreme Court nominee. It also plays out in how the nomination battle is waged. White House and Department of Justice staffers have an incentive to dodge controversy. They are generally focused on getting the nominee confirmed as quietly as possible, not in having the nominee engage in a prominent public debate over judicial philosophy.

The nominee has the same short-term incentives to avoid even remote risks to being defeated. That perspective is reinforced by the many hours that the nominee spends with White House and DOJ staffers preparing for meetings with senators and doing practice sessions for the confirmation hearing.

Consider a few illustrations of this phenomenon:

1. When Ruth Bader Ginsburg showed up for her confirmation hearing in 1993, she had every reason to know that she would be confirmed. My boss Senator Orrin Hatch, the lead Republican on the Judiciary Committee, had literally hugged Ginsburg at the White House ceremony at which Bill Clinton announced her nomination. No significant controversy had arisen in the five intervening weeks. Democrats had a 56-44 margin in the Senate, and lots of Republicans were already on board.

Ginsburg could have fully answered every question posed to her. Instead, in her opening statement she declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” On that basis, she declined to answer many questions about specific cases and issues.

Ginsburg’s approach, which has come to be known as the Ginsburg Rule, has been a great gift to subsequent nominees. That gift has been especially valuable to nominees of Republican presidents, who benefit from the shelter it provides from a generally hostile press.

2. When George W. Bush nominated John Roberts in 2005, news articles widely reported that Roberts had been a member of the Federalist Society. Roberts’s confirmation team raced to contest these reports:

[T]he day after Bush announced Roberts’s nomination, the officials working on the nomination asked the White House press office to call each news organization that had reported Roberts’s membership to tell them that he did not recall being a member.

As I’ve recounted, a Washington Post reporter told me that she and her colleagues were laughing at how eager the White House was to distance Roberts from the Federalist Society. Why should his involvement with it be controversial? But the White House press office found it more convenient to try to run to the middle than to defend conservative judicial principles.

3. A large factor in Bush’s shocking nomination of Harriet Miers in 2005 was, ironically, the supposed ease of getting her confirmed. Karl Rove states in his memoir that “Senate Democratic leader Harry Reid told Bush he would support Miers and felt other Democrats would as well.” Never mind that the Senate had 55 Republicans and had just confirmed Roberts by a margin of 78 to 22. The White House didn’t want a fight.

Consider also a converse illustration: With the benefit of twenty years of hindsight, many conservatives sensibly hail Bush’s subsequent appointment of Samuel Alito as perhaps his greatest act as president. Conservatives celebrated Alito’s appointment at the time, but no one could have clearly foreseen how monumentally important it would prove to be. So whatever credit Bush received at the time was comparatively modest.

***
One big reason why Sotomayor would be dissuaded from trying to make a vigorous case for progressive judicial concepts like “living constitutionalism” is that over the preceding fifteen years or so Republicans had been winning the public political battle over judicial philosophy.

You don’t have to take my word for it. That’s how liberal law professors saw things. In this interesting summary five days after the Senate confirmed Sotomayor’s nomination, one professor observed (in the blogger’s paraphrase) that conservatives

have done a much better job of articulating a jurisprudential philosophy than have liberals over the last generation, and the philosophy they have articulated--some version of judicial restraint plus originalism plus formalism--fits the lay public's view of judging. By contrast, the notion of a “living Constitution” is held up as a code word for judges imposing their preferences on society.

Another law professor’s complaint that conservatives have “oversimplifying and misleading slogans” (again, a paraphrase) was itself a testament to the effectiveness of conservative rhetoric. And a third law professor (the blogger himself) agreed that “conservative dogma has broader public appeal” and urged liberals “to come up with a set of slogans that captures the core of the philosophy and resonates with the public.”

Sotomayor’s own nomination was framed by Barack Obama’s much-mocked “empathy” standard for selecting Supreme Court justices. Obama sought justices who would indulge their own “deepest values” and “core concerns” in determining the meaning of constitutional provisions and federal laws. Sotomayor’s controversial “wise Latina” comment signaled that she satisfied Obama’s standard, and her scandalous mishandling of the race-discrimination claims brought by New Haven firefighters showed that the ugly flip side of empathy for some litigants is antipathy to other litigants.

Sotomayor and her advisers didn’t want to give her opponents any more ammunition, and they didn’t want to raise the political costs of getting her confirmed. That would amply explain why she repudiated Obama’s empathy standard, why she resisted Democratic senators’ invitations to criticize the umpire simile that John Roberts had used to convey the judicial duty of impartiality, and why she absurdly described her “philosophy of judging” as nothing more than “applying the law to the facts at hand.”

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That was liberal law professor Louis Michael Seidman’s blunt condemnation of Sotomayor’s account of her judicial philosophy at her confirmation hearing. (Seidman was taking part in an online debate with me and others).

Let’s take a look here at how Sotomayor described her judicial philosophy. In my next post, I will ponder why.

***

When Barack Obama nominated Sonia Sotomayor to the Supreme Court, all the elements seemed to be in place for an exhilarating triumph for the Left:

• A charismatic president who trumpeted the critical role of empathy in a judge’s determination of what the law means.

• A “wise Latina” nominee with a genuinely inspiring life story and strong ties to the left-wing “public interest” community.

• An overwhelming Democratic majority in the Senate.

• A sympathetic media.

Progressives eagerly awaited Sotomayor’s robust presentation of their judicial vision. But that’s not at all what they ended up witnessing.

In her opening statement, Sotomayor defined her “judicial philosophy”: “The task of a judge is not to make law, it is to apply the law.” She repeated this mantra throughout the hearing:

• “[J]udges must apply the law and not make the law.”

• “[T]hat is my philosophy of judging, applying the law to the facts at hand.”

• “The job of a judge is to apply the law…. The judge applies the law to the facts before that judge.”

• “I apply the law to the facts before it [sic].”

• “We cannot remedy the ills of society in a courtroom. We can only apply the law to the facts before us.”

• “Judges apply the law, they apply the holdings of precedent, and they look at how that fits into the new facts before them. But you’re not creating law.”

More strikingly, Sotomayor emphatically repudiated the empathy standard that Obama committed to use in selecting his Supreme Court nominees:

Senator KYL: Do you agree with [Obama] that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided what’s in the judge’s heart?

Judge SOTOMAYOR. No, sir. That’s—I don’t—wouldn’t approach the issue of judging in the way the President does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge.

Sotomayor likewise rejected (or at least appeared to reject) the Left’s concept of a “living Constitution”:

Senator GRAHAM. Do you believe the Constitution is a living, breathing, evolving document?

Judge SOTOMAYOR. The Constitution is a document that is immutable to [sic] the sense that it’s lasted 200 years. The Constitution has not changed, except by amendment. It is a process—an amendment process that is set forth in the document. It doesn’t live, other than to be timeless by the expression of what it says. What changes, is society. What changes, is what facts a judge may get presented.

She instead seemed to argue that the original meaning of constitutional text ought to prevail over mistaken precedent:

Senator HATCH. Which is more important or deserves more weight? The actual wording of the Constitution as it was originally intended or newer legal precedent?

Judge SOTOMAYOR. The intent of the founders were set forth in the Constitution. They created the words, they created the document. It is their words that is the most important aspect of judging. You follow what they said in their words and you apply it to the facts you are looking at.

Sotomayor also rebuffed the invitations by multiple Democratic senators to slam the umpire simile that John Roberts had famously used in his confirmation hearing to convey the judicial duty of impartiality. She instead embraced the simile (while acknowledging the obvious fact that “analogies are always imperfect”):

What judges do, like umpires, is to be impartial and bring an open mind to every case before them.

***

I certainly don’t mean to suggest that anyone should have believed Sotomayor’s statements. As I wrote at the time (in the next round of that same online debate), Sotomayor “deserves an A+ for brazen doublespeak.” But the confirmation hearing was an excruciating fiasco for all the legal progressives, like Seidman, who were reasonably hoping and expecting that Sotomayor would provide an ardent defense of their constitutional vision.

As I will explore in my follow-on post, two larger (and interrelated) lessons emerge from this episode:

(1) By 2009, conservatives had resoundingly triumphed in the public rhetorical battle over the proper role of the courts.

(2) Even when confirmation is a virtual certainty, the White House and a Supreme Court nominee have a strong incentive to play it safe.

In July 2009, two weeks after the Supreme Court rendered its decision in Ricci v. DeStefano, the case was front and center at Sonia Sotomayor’s confirmation hearing. Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, badly mischaracterized Sotomayor’s role in the case, and Sotomayor embraced his mischaracterizations.

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***

In his opening statement, Senator Jeff Sessions, the senior Republican on the Judiciary Committee, charged that Sotomayor’s shoddy handling of the Second Circuit appeal in Ricci illustrated the unsoundness of Barack Obama’s “empathy” standard for selecting justices and of Sotomayor’s own celebration of the “wise Latina” judge who draws on the “richness of her experiences”:

Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader in the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue to her decision against the firefighters?

While the nominee was Chair of that Fund’s Litigation Committee, the organization aggressively pursued racial quotas in city hiring and, in numerous cases, fought to overturn the results of promotion exams. It seems to me that in Ricci, Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against another.

That is, of course, the logical flaw in the ‘‘empathy standard.’’ Empathy for one party is always prejudice against another.

***
Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, used his first round of questioning to attempt to preempt any further attack on Sotomayor over Ricci. Leahy appears to have been unburdened in this endeavor by any scruples about getting things right. Here’s what he asserted:

Now, the legal issue that was presented to you in that case was not a new one—not in your circuit. In fact, there was a unanimous, decades-old Supreme Court decision as well. In addition, in 1991, Congress acted to reinforce that understanding of the law…. So you had a binding precedent. You and two other judges came to a unanimous decision. Your decision deferred to the district court’s ruling allowing the city’s voluntary determination that it could not justify using that paper-and-pencil test under our civil rights laws, you say it was settled judicial precedent. A majority of the Second Circuit later voted not to revisit the panel’s unanimous decision; therefore, they upheld your decision.

So you had Supreme Court precedent. You had your circuit precedent. You were upheld within the circuit. Subsequently, it went to the Supreme Court, and five, a bare majority of five Justices reversed the decision, reversed their precedent, and many have said that they created a new interpretation of the law.

Leahy’s contention that “binding precedent” dictated the Second Circuit panel’s decision in Ricci is flatly wrong. Sotomayor and her panel colleagues didn’t make that claim in their opinion, and the district-court ruling that they essentially adopted went no further than to claim (sloppily) that a previous circuit case holding was “quite relevant and instructive.” As Judge José Cabranes wrote in his dissent from the denial of rehearing en banc:

This appeal raises important questions of first impression in our Circuit — and indeed, in the nation — regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices.

Leahy either didn’t understand what the “legal issue” in Ricci was or didn’t want anyone watching the hearing to understand. The “unanimous, decades-old Supreme Court decision” he was referring to is Griggs v. Duke Power Co. (1971), which ruled (as I explained more fully in my Part 3 post) that Title VII plaintiffs may pursue claims of “disparate impact.” Leahy was correct that the 1991 amendments to Title VII “reinforce[d] that understanding of the law.” But no one disputed that in Ricci. The legal issue instead was whether and when (as Justice Kennedy put it in his majority opinion in Ricci) “an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact.” The Supreme Court had never decided that issue before, and neither had the Second Circuit. So Leahy’s claim that Sotomayor was just following “binding precedent” is poppycock.

It is appalling to see that Sotomayor, in responding to Leahy, embraced his mischaracterization of precedent:

You are correct, Senator, that the panel, made up of myself and two other judges, in the Second Circuit decided that case on the basis of a very thorough, 78-page decision by the district court and on the basis of established precedent.

The issue was not what we would do or not do, because we were following precedent, and you—we’re now on the circuit court—are obligated on a panel to follow established circuit precedent.

You might charitably think that Sotomayor was contending only that the panel decision was consistent with circuit precedent—i.e., was a defensible extension of that precedent. But she immediately extinguished any integrity-salvaging ambiguity that might have existed:

Chairman LEAHY. But when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined the outcome you had to come up with. Is that correct?

Judge SOTOMAYOR. Absolutely.

Leahy (as I document near the end of this post) then proceeded to ask Sotomayor about her “wise Latina” remark but doctored her quote to eliminate what rendered it controversial.

***
Senator Sessions, when it was his turn, corrected Leahy’s misquotation of Sotomayor’s “wise Latina” comment and probed her apparent willingness to accept—rather than guard against the danger—that her “sympathies, opinions, and prejudices” might influence her decisionmaking. He invoked her decision in Ricci as an example. But he did not push back against Leahy’s misrepresentations of precedent and Sotomayor’s embrace of those falsehoods.

It was only two days later that another Republican senator, Jon Kyl, challenged Sotomayor’s testimony:

No Supreme Court case had decided whether rejecting an employment test because of its racial results would violate the civil rights laws. Neither the Supreme Court’s majority in Ricci nor the four dissenting judges discussed or even cited any cases that addressed the question. In fact, the Court in its opinion even noted—and I am quoting here—that ‘‘this action presents two provisions of Title VII to be interpreted and reconciled with few, if any, precedents in the court of appeals discussing the issue.’’

In other words, not only did the Supreme Court not identify any Supreme Court cases that were on point; it found few, if any, lower court opinions that even addressed the issue.

Isn’t it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and Second Circuit precedent when you voted each time to reject the fire fighters’ civil rights complaint?

In response, Sotomayor misstated the legal issue at stake in Ricci:

The issue was whether or not employees who were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit. Did they have a right to bring a lawsuit on the basis of prima facie case and what would that consist of?

As I’ve spelled out in detail, Justice Kennedy’s opinion in Ricci stated that the “degree of adverse impact reflected in the results” sufficed to establish “a prima facie case of disparate-impact liability.” That was not the issue in Ricci. The issue was whether (as Kennedy put it) a prima facie case—mere “threshold showing of a significant statistical disparity, and nothing more”—provided a lawful basis for the City of New Haven to discriminate on the basis of race against the plaintiff (white and Hispanic) firefighters.

Kyl pressed on at length, and Sotomayor continued to dissemble. (See pp. 414-419.)

***

After Sotomayor finished her testimony, several panels of witnesses offered their own testimony.

The first witness was Kim Askew, chair of the American Bar Association’s Standing Committee on the Federal Judiciary. Askew presented the ABA committee’s unanimous rating of Sotomayor as “Well Qualified” (its highest rating).

Faithful readers of Confirmation Tales might recall Askew’s scandalous role three years earlier in leading the ABA committee’s investigation of Fifth Circuit nominee Michael B. Wallace that resulted in a “Not Qualified” rating. Among other things, Askew was serving at the same time on the board of trustees of the Lawyers’ Committee on Civil Rights, which occupies the hard Left on matters of race and which fervently opposed leading nominees of the Bush administration. Askew argued that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicated that he was not committed to equal justice. Plaintiffs’ counsel in that case was none other than … the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group on whose board she served.

Askew, as it happens, also appears to have had a stark conflict of interest in taking part in the rating of Sotomayor. The Lawyers’ Committee on Civil Rights, which continued to identify her as a member of its board of trustees, submitted an amicus brief in the Supreme Court in Ricci that argued that Sotomayor’s ruling should be affirmed. Given how prominent the Ricci case was as a focus of concerns about Sotomayor’s impartiality, it’s very strange that the ABA’s evaluation of Sotomayor would be led by a member of the board of trustees of an organization that submitted an amicus brief (on either side) in Ricci.

***
Two other witnesses were Frank Ricci and Benjamin Vargas, two of the plaintiff firefighters in Ricci v. DeStefano. Ricci rebutted the misconception that “firefighters just fight fires”:

Technology and modern threats have challenged our profession. We have become more effective and efficient, but not safer. The structures we respond to today are more dangerous, constructed with lightweight components that are prone to early collapse, and we face fires that can double in size every 30 to 60 seconds….

Too many think that firefighters just fight fires. Officers are also responsible for mitigating vehicle accidents, hazardous material incidents, and handling complicated rescues. Rescue work can be very technical. All of these things require a great deal of knowledge and skill.

Lieutenants and Captains must understand the dynamic fire environment and the critical boundaries we operate in. They are forced to make stressful decisions based on imperfect information and coordinate tactics that support our operational objectives. Al most all our tasks are time-sensitive. When your house is on fire or your life is in jeopardy, there are no time for do-overs.

He described his intensive preparation for the promotional exams:

I studied harder than I ever had before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes. I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.

He highlighted that the City’s action penalized minority firefighters other than Vargas. And he lamented that reducing firefighters to racial statistics “could result in injury or death.”

On top of describing his own hard work preparing for the exams, Vargas addressed his own Hispanic ethnicity:

I am Hispanic and proud of the heritage and background that Judge Sotomayor and I share, and I congratulate Judge Sotomayor on her nomination.

But the focus should not have been on me being Hispanic. The focus should have been on what I did to earn a promotion to captain, and how my own government and some courts responded to that. In short, they didn’t care. I think it important for you to know what I did, that I played by the rules and then endured a long process of asking the courts to enforce those rules….

In our profession, the racial and ethnic make-up of my crew is the least important thing to us and to the public we serve. I believe that countless Americans who had something to say about our case understand that now. Firefighters and their leaders stand between their fellow citizens and catastrophe. Americans want those who are the most knowledge and qualified to do the task. I am willing to risk, and even lay down, my life for fellow citizens, but I was not willing to go along with those who placed racial identity over these more critical considerations.

He expected impartial justice but did not receive it from Sotomayor:

I expected Lady Justice with the blindfolds on, and a reasoned opinion from a Federal Court of Appeals telling me, my fellow plaintiffs, and the public that the court’s view on the law—what the court’s view on the law was, and do it in an open and transparent way. Instead, we were devastated to see a one-paragraph, unpublished order summarily dismissing our case, and indeed even the notion that we had presented important legal issues to that Court of Appeals.

He succinctly made the commonsense case against Obama’s empathy standard:

I expected the judges who heard my case along the way to make the right decisions, the ones required by the rule of law. Of all that has been written about our case, it was Justice Alito [in his concurring opinion] who best captured our own feelings. We did not ask for sympathy or empathy, we asked only for even-handed enforcement of the law, and prior to the majority Justice opinion in our case, we were denied just that.

***
To add insult to injury: When the White House held a reception in August 2009 to celebrate Sotomayor’s appointment to the Court, one surprising party guest was New Haven mayor John DeStefano Jr., the named defendant in Ricci v. DeStefano and, as Justice Alito’s concurrence documented, the driving force—in collusion with a local racebaiter who was his longtime ally—behind the racial discrimination against the firefighters.

Abonnez-vous maintenant

As you will see, a French version of Confirmation Tales—Histoires de confirmation—would not have any content.

***
The French Fifth Republic has been in effect since 1958. The president serves a term of five years. (The French constitution was changed in 2000 to reduce the term from seven years to five.)

The French parliament consists of two houses, the Senate and the National Assembly. The Senate consists of 348 senators. They serve six-year terms, staggered into two classes. The National Assembly has 577 deputies, who serve five-year terms, except that the president has broad power to dissolve the Assembly and to call for new elections.

The president has unilateral authority to appoint the prime minister. But the National Assembly can force the prime minister to resign by passing a motion of censure.

***
France has three high courts with distinct responsibilities: the Conseil d’État, the Cour de Cassation, and the Conseil Constitutionnel.

The Conseil d’État operates as France’s supreme court for administrative law. The Cour de Cassation operates as its supreme court for civil and criminal law. Each hears and decides appeals from lower courts.

The Conseil d’État has seven divisions and more than 200 judges. It typically operates in panels of three to seventeen members. It decides more than 10,000 cases a year.

The Cour de Cassation has six separate subject-matter divisions and some 200 judges. Its panels usually have three or five judges. It decides more than 25,000 cases a year.

Neither of these bodies can decide open constitutional questions. Since 2010, they refer serious unresolved constitutional questions (questions prioritaire de constitutionnalité, or QPCs) to the Conseil Constitutionnel for decision. When the Conseil Constitutionnel resolves a constitutional question, the Conseil d’État and the Cour de Cassation then apply its resolution in the cases before them.

Beyond its new role in deciding QPCs, the Conseil Constitutionnel maintains its traditional function of ruling on the constitutionality of legislation after it has been enacted by the parliament but before it has been signed into law by the president. The Conseil Constitutionnel generally can exercise this function only when a specified authority refers the legislation to it for review.

***
The members of these three bodies are selected through different means, but none involves confirmation.

The Conseil Constitutionnel has nine members (in addition to former presidents, who seldom take part). They are appointed for nonrenewable nine-year terms. Three new members are appointed every three years. The appointment authority is divided among the president, the president of the Senate, and the president of the National Assembly. Each appoints one new member every three years.

The parliament has a sort of veto power over the French president’s appointments to the Conseil Constitutionnel. Specifically, it may block an appointment by a three-fifths majority vote of the combined membership of the constitutional-law committees of the Senate and the National Assembly. But if the committees do not act to block the appointment, it becomes effective. (By contrast, in the American system, Senate confirmation of a nomination is a prerequisite to an effective appointment.) The committees of the Senate and the National Assembly each also have a veto power (again by a three-fifths majority) over appointments made by their chamber presidents.

No appointment to the Conseil Constitutionnel has ever been blocked by these parliamentary committees. Just last February, the committees fell one vote short of blocking President Emmanuel Macron’s appointment of Richard Ferrand.

Members of the Conseil d’État are appointed by the Council of Ministers (which consists of the prime minister and other ministers). They do not have fixed terms. Members of the Conseil d’État have civil-service protections, are eligible for regular advancement based on seniority, and are subject to discipline or revocation via internal disciplinary mechanisms rather than political checks.

Judges on the Cour de Cassation are appointed by the president, but the president is constrained to act only on the recommendation of another body, the High Council of the Judiciary (Conseil Supérieur de la Magistrature). They have strong protections against removal or reassignment, but are subject to a mandatory retirement age (ranging from 67 to 70, depending on their positions).

***
France remains very foreign.

(I have drawn on various sources for this post, including Claude AI and Wikipedia, but I have undertaken to verify what I have learned from those sources. I am of course responsible for any errors and will undertake to correct them.)

No Supreme Court case has ever loomed more ominously over an aspiring Supreme Court justice than Ricci v. DeStefano did over Sonia Sotomayor in 2009.

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Oral argument in Ricci took place just before Justice David Souter announced his retirement. The case weighed on White House lawyers during the weeks that Barack Obama took to select Sotomayor for Souter’s seat, and it hung over the first month of her nomination. When the Court did rule, a five-justice majority emphatically repudiated Sotomayor’s position, and even the four dissenters disagreed with the standard that she adopted and with her bottom-line judgment. Even more starkly, the careful and extensive consideration in the majority and dissenting opinions contrasted sharply with Sotomayor’s dismissive one-paragraph treatment of the legal claims.

***

As we have seen, Sonia Sotomayor and her Second Circuit colleagues tried to bury the claims of twenty firefighters—nineteen whites and one Hispanic—that the City of New Haven had discriminated against them on racial grounds by discarding the results of promotional exams. It was bad enough for Sotomayor that Judge José Cabranes—her onetime mentor and fellow Puerto Rican—exposed the shenanigans in his extraordinary dissent from denial of rehearing en banc. It got even worse in January 2009 when the Supreme Court granted certiorari in the case.

The dispute that Sotomayor had tried to dispose of in an unpublished summary order with a single substantive paragraph would now be teed up for national attention. The Supreme Court would be addressing for the first time how to resolve the statutory clash between the City’s duty not to engage in intentional racial discrimination against the plaintiff firefighters and its duty to avoid employment practices that had a “disparate impact” on minority firefighters.

***

Let’s clarify what was at stake in Ricci.

Title VII, as originally enacted in the Civil Rights Act of 1964, prohibits discrimination “because of” race (as well as “color, religion, sex, or national origin”)—i.e., intentional discrimination, also referred to as “disparate treatment.” In its unanimous ruling in Griggs v. Duke Power Co. in 1971, the Supreme Court held that this prohibition also applies to any practice that, although not intentionally discriminatory, “operates to exclude [minorities and] cannot be shown to be related to job performance.” A practice that unintentionally “operates to exclude” minorities beyond some (arbitrary) benchmark is said to have “disparate impact.”

In 1991, Congress effectively ratified Griggs by amending Title VII to spell out how the burden of proof in disparate-impact cases shall operate. In brief: The plaintiff establishes a prima facie case that an employment practice is unlawful by showing that it “causes a disparate impact on the basis of race.” The employer then has the burden to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” If the employer meets that burden, the plaintiff may still succeed by showing that the employer has refused to adopt an available alternative employment practice that has less of a disparate impact and that serves the employer’s legitimate needs.

Let’s make this concrete.

By tossing out the results of the promotional exams, the City of New Haven engaged in racial discrimination against (i.e., disparate treatment of) Frank Ricci, Benjamin Vargas, and their fellow plaintiffs. The City would not have tossed out the results if the racial composition of those qualifying for promotion had pleased it more. The City tried to justify its racial discrimination by claiming that it was acting to avoid disparate-impact liability to those minority firefighters who did less well on the exams.

The issue in Ricci was what standard the City had to meet in order to allow its disparate-impact concerns to trump its duty not to engage in intentional racial discrimination against the plaintiffs.

Consider the polar alternatives.

On one extreme—the position adopted by Sotomayor and her panel colleagues—the City should have broad rein to commit racial discrimination in order to avoid disparate-impact concerns. In the panel’s words, “because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.” It sufficed that the potential disparate-impact plaintiffs could meet the minimal prima facie threshold of showing that the exams had a racially disparate impact. It did not matter whether such plaintiffs had any plausible prospect of actually succeeding on their disparate-impact claims. As Judge Cabranes correctly observed, under the panel’s approach, “municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota.”

On the opposite extreme, the City could be required to certify the exam results even when it was certain that doing so would make it liable for disparate-impact discrimination to minority firefighters. This would put the City in a Catch-22 and would seem to put Title VII at war with itself (though one resolution to the war would be to hold the disparate-impact provisions unconstitutional in such instances).

Between these extremes were various other alternatives.

***
Oral argument in Ricci was set for April 22, 2009. As the argument date approached, attention to the case increased. As a savvy and aggressive aspirant for a Supreme Court nomination, Sotomayor knew that a vacancy was likely to arise that spring or summer. She also surely recognized that her escapades in Ricci made it more difficult for Barack Obama to nominate her.

Five days before the oral argument in Ricci, Sotomayor did some extraordinary public cheerleading for Obama. In a speech she delivered to the Black, Latino, Asian Pacific American Law Alumni Association, she proclaimed:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

If you don’t think that such comments from a sitting judge are problematic, imagine another judge making similar comments about Donald Trump’s election.

***

Nine days after oral argument in Ricci, Justice David Souter announced his retirement. It took Obama 25 days to select Sotomayor.

As Joan Biskupic recounts in her biography of Sotomayor, White House lawyers were working through their concerns about her actions in the Ricci case. They knew that the Court would issue its decision before the confirmation hearing on Obama’s nominee took place, and they expected the Court to reverse Sotomayor. Indeed, the Administration’s own brief in the case, while broadly supportive of the City, took the position that Sotomayor and her colleagues were wrong to affirm the district court’s grant of summary judgment for the City. But White House lawyers figured that a reversal of Sotomayor could be blamed on conservative justices, and that, with 59 Democrats in the Senate, any controversy over Ricci would not imperil Sotomayor’s confirmation.

***

The Court announced its decision in Ricci in the last announcement session of the term, on June 29—just two weeks before Sotomayor’s confirmation hearing would begin. The Court divided 5 to 4. Justice Anthony Kennedy’s opinion rejected the City’s position that “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct.” That “minimal standard,” he explained, would be satisfied “even where there is little if any evidence of disparate-impact discrimination” and “would amount to a de facto quota system.” Drawing on racial-discrimination cases arising under the Equal Protection Clause, the Court instead declared:

We hold that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. [Emphasis added.]

In this case, “the record makes clear there is no support for the conclusion that [the City] had an objective, strong basis in evidence to find the tests inadequate.” While the “degree of adverse impact reflected in the results” sufficed to establish “a prima facie case of disparate-impact liability,” that was merely “a threshold showing of a significant statistical disparity, and nothing more.” That prima facie case “is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.” The City “could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt,” but, as Justice Kennedy went on to document in detail, there was “no strong basis in evidence to establish that the test was deficient in either of these respects.”

Justice Ruth Bader Ginsburg, joined by Souter and her two other liberal colleagues, dissented. Justice Ginsburg would have adopted the test whether the employer had “good cause” to act. Notably, she distinguished her standard from that applied by the Second Circuit panel and the district court, who in her view mistakenly “focused on [the City’s] intent.” She also explained that her preferred disposition would be to remand the case to the district court to apply her standard.

Sotomayor’s defenders tried to claim vindication from Ginsburg’s dissent. But beyond the fact that Ginsburg disagreed with Sotomayor’s standard and with her affirmance of summary judgment, Ginsburg’s dissent does not remotely suggest that Sotomayor’s effort to dispose of the case in an unpublished one-paragraph summary order was appropriate.

***
Justice Ginsburg also shadow-boxed with Justice Samuel Alito over Obama’s empathy standard. Justice Ginsburg stated in her dissent that the “white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy”—as if the majority was indulging its empathy for them (and for the Hispanic plaintiff, Benjamin Vargas, whom Ginsburg somehow ignores). Alito responded:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

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As we shall see, Ricci would play a prominent role in Sotomayor’s confirmation hearing. Unable to defend her actual course of conduct, Sotomayor and the Democratic chairman of the Senate Judiciary Committee would resort to falsehoods.