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Curiously, Smith did not race to inform Reagan of Stewart’s decision. It’s not clear why not. Smith could immediately have reached Reagan by phone. If he wanted to pass along the news in person, Reagan was at the White House that day, Friday, and through the weekend. But Smith didn’t try to reach him.

On Saturday, Reagan and Smith both went to the Capital Hilton Hotel to attend the Gridiron Club Dinner, noted for its satirical skits. One gag poked fun at Smith’s reputation for saying nothing. Reagan joked that “sometimes our right hand doesn’t know what our far-right hand is doing.”

On Monday, Reagan was at another Hilton, the Washington Hilton, when John Hinckley Jr. severely wounded him in an assassination attempt. In Smith’s judgment, it was “not practical to advise him of the impending vacancy until after he had returned from the hospital.” Reagan was released from the hospital on April 11. But it wasn’t until April 21—26 days after his meeting with Stewart—that Smith informed Reagan that Stewart would be retiring.

***

“I know it when I see it.” That was Supreme Court justice Potter Stewart’s unintentionally suggestive admission of his inability to define obscenity (in his one-paragraph concurring opinion in Jacobellis v. Ohio (1964)). When he publicly announced his retirement in mid-June 1981, Stewart lamented having written the line and joked that it would end up on his tombstone.

Potter Stewart grew up in a prominent Republican family in Cincinnati. His father was the city’s mayor for nine years and a justice of the Ohio supreme court for a dozen years. Stewart received his college and law-school degrees from Yale, where he was a member of the elite Skull and Bones society. Dwight Eisenhower appointed him to the Sixth Circuit in 1954, when he was 39, and to the Supreme Court four years later, when he was 43. (I rely here on Wikipedia.)

Stewart was often in dissent during the Warren Court years, including in the 1965 case of Griswold v. Connecticut, which declared that laws against contraception violated a constitutional right of privacy for married couples. As Stewart put it, “I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”

Stewart became more of a centrist on the Burger Court, in part because the Court shifted modestly rightward, in part because he moved leftward. He joined the majority opinion in Roe v. Wade (1973) that asserted a constitutional right to abortion, but he dissented from the Court’s approval of racial preferences in university admissions in Regents of University of California v. Bakke (1978).

Stewart was only 66 when he decided to retire in 1981. He would die four years later.

***

I’ve drawn the account of Stewart’s meeting with Smith from a 12-page memorandum titled “History of the Nomination of Justice Sandra Day O’Connor” that Smith drafted in late September 1981, right after O’Connor joined the Court. Smith, referring to himself in the third person (as “the Attorney General”), explains what he did when he returned to the Justice Department on Friday:

The next day, March 27, the Attorney General directed Kenneth W. Starr, Counselor to the Attorney General, to see that research began into prospective candidates for a Supreme Court appointment in the event that a vacancy should develop. With respect to possible women candidates, he furnished a number of names on a handwritten list to Mr. Starr. Whenever the name of a possible woman candidate had come to the Attorney General’s attention, he had noted it on a telephone message slip which he kept on his desk. The list included Judge Sandra O’Connor, who was identified as an Arizona appellate court judge. The list did not contain Judge O’Connor’s full name.

So unknown was O’Connor that, as Smith goes on to explain, Starr had to return to him to ask “for the full name of the Arizona appellate judge, since the Attorney General’s staff was unable to identify her based upon the information set forth on the handwritten note.” Joan Biskupic, in her biography of O’Connor, tells the story slightly differently but to the same effect:

“Who’s O’Connor?” asked the assistant, Ken Starr, when Smith handed him the slip. “All you’ve got here is a last name.”

Smith’s account is remarkable in at least one other respect. I would have thought that the Attorney General would have made it a high priority to launch a Supreme Court candidate search from his first day in office (which was January 23, 1981), especially since he would have known that it would be challenging to find an outstanding female candidate. Instead, it seems that he was just writing names on a piece of paper.

Smith was very fortunate that Stewart gave him nearly three months of advance notice of his retirement. During that time (as Smith recounts in his memo), Ken Starr was able to organize a team that conducted a back-and-forth process with the Attorney General. The team compiled background information on twenty-one candidates and reviewed their judicial opinions. In mid-May, Starr and his colleague Hank Habicht gave Smith a preliminary report, and the process “intensified” after Stewart publicly announced his retirement on June 18. As we shall see in a later post, the process had one severe defect. I wonder how much worse it would have been if it had been initiated only upon Stewart’s public announcement.

***

Whether or not Smith was aware of it, there was a team of lawyers in the Department of Justice who on their own initiative had been preparing from Day 1 for the possibility of a vacancy. As Bruce Fein, who was Associate Deputy Attorney General, tells me, he established a working group that included Starr, John Roberts, Chuck Cooper, and Carolyn Kuhl. The group created a Top 10 list of judicial conservatives and quickly settled on Robert Bork and Antonin Scalia in the top two spots.

But when Stewart publicly announced his retirement, word quickly came from the White House that his replacement had to be a woman. Reagan’s campaign promise that “one of the first Supreme Court vacancies” during his presidency would be filled by a woman had hardened into this one has to be a woman. The political team in the White House was already preparing for the re-election fight in 1984, and the same “gender gap” concerns that motivated the campaign promise would drive the selection of Stewart’s replacement.

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***

As Joan Biskupic recounts in her 2005 biography of O’Connor, former Phoenix mayor John Griggs invited O’Connor and her husband on a houseboat trip on Lake Powell in Utah that he and his wife were hosting in August 1979 for Chief Justice Burger and for Griggs’s brother-in-law, who was Burger’s administrative assistant. The O’Connors didn’t know Burger at all, but the Griggses were confident that they would keep the conversation lively. O’Connor made such a favorable impression on the Chief Justice that three months later he invited her to take part in a legal conference—the Anglo-American Legal Exchange—in London in 1980.

In their three days on the houseboat, O’Connor surely made known to Burger her close friendship with Burger’s younger conservative colleague William H. Rehnquist. O’Connor and Rehnquist had been in the same class at Stanford law school and had dated into their second year. Rehnquist graduated a semester early in December 1951 and moved to Washington, D.C. to clerk for Justice Robert Jackson. Rehnquist’s fondness for O’Connor was so strong that (as Evan Thomas discovered in writing his 2019 biography of O’Connor) he proposed to her by letter in March 1952: “To be specific, Sandy, will you marry me this summer?” Sandra Day, as she was then known, declined, as she was in the middle of an intense courtship with her soon-to-be husband John O’Connor.

Rehnquist married in 1953, and he and his wife became close friends of the O’Connors in Phoenix. When Richard Nixon nominated Rehnquist to the Supreme Court in 1971, O’Connor, then serving in the Arizona senate, hailed Rehnquist as “one of the most brilliant legal minds in the country.” She also launched a remarkably energetic campaign on Rehnquist’s behalf. (I draw here from Biskupic.)

In the realm of very modest speculation, I think it very likely that Burger spoke with Rehnquist about meeting O’Connor and that Rehnquist confirmed Burger’s enthusiasm for her.

***

Even before he was inaugurated as president in 1981, Reagan gave William French Smith, his pick to be Attorney General, a short (and non-exclusive) list of individuals to be considered for a Supreme Court vacancy. Robert A. McConnell, head of the Department of Justice’s Office of Legislative Affairs under Smith, tells me that he understands O’Connor’s name to have been on that list.

There is ample reason to believe that it was Burger who got O’Connor’s name put on that list. As Biskupic recounts, Burger arranged for Reagan to visit the Supreme Court as president-elect, and he “began sending notes [on various topics] to Reagan’s top people.” After Reagan took office, “Burger was quietly putting O’Connor’s name before White House officials.” He invited White House counsel Fred Fielding to his house for lunch. Fielding tells me (in terms similar to what he told Biskupic):

During the luncheon discussion Chief Justice Burger raised the subject of a prospective vacancy. He mentioned having met a most interesting state court jurist on a houseboat trip, Sandra O’Connor, and having been with her at a legal conference in London. It was obvious to me he was trying to plant her name in my mind.

***

I will turn next to how O’Connor managed to win Reagan’s nomination.

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After a Rose Garden ceremony at the White House with President Reagan, O’Connor went to meet with members of the Senate Judiciary Committee. Her first meeting was with Charles Mathias, a liberal Republican from Maryland. When Mathias asked O’Connor how all of the attention she was getting was affecting her, O’Connor puckishly addressed the controversy with Falwell:

Well, my husband John thinks it is very exciting to be sleeping with someone opposed by the Moral Majority.

That story is part of the comprehensive account of the O’Connor confirmation process that Robert A. McConnell has recently shared with friends on his email distribution list. Bob, as assistant attorney general for the Department of Justice’s Office of Legislative Affairs, was intimately involved in the process and accompanied O’Connor to all of her meetings with senators. His reminiscences (which he will work into a book full of interesting stories about his experience in the Reagan administration) have inspired me to do a few posts on the O’Connor confirmation. (I thank him in particular for authorizing me to retell the exchange with Senator Mathias.)

***

Sandra Day O’Connor was in most respects a highly improbable candidate for the Supreme Court in 1981.

If you look at the twenty or so justices who were appointed over the previous four decades, you’ll see federal appellate judges, senators and governors, senior Department of Justice officials, prominent lawyers, presidential allies, and a state supreme court justice.

O’Connor had none of these distinctions. She had served on Arizona’s court of appeals—the state intermediate appellate court—for barely a year and as a state trial judge for five years before that. She had been a state senator for five years and had also worked for a few years in the state attorney general’s office. These are all respectable positions, of course, but nothing that would remotely flag her as a Supreme Court candidate. No state judge on an intermediate appellate court had ever been directly appointed to the Supreme Court.

Insofar as considerations of geographic diversity continued to have any weight, it didn’t help O’Connor. Arizona, which then ranked only 29th in population among the states, already had one justice on the Court: William H. Rehnquist, a transplant from Wisconsin, practiced law in Phoenix from 1953 until he joined the Nixon administration in 1969 as assistant attorney general for the Office of Legal Counsel in the Department of Justice.

But unlike the 100 or so previous Supreme Court justices, O’Connor was a woman. That feature, along with her Republican ties, would prove to be a massive advantage.

***

The presidential campaign of 1980 was a three-way race. Republican candidate Ronald Reagan was attempting to defeat Jimmy Carter’s bid for re-election, but he also had to worry about losing voters to John B. Anderson, the longtime Republican congressman who was running as an independent. The Reagan campaign’s internal polls showed that he was in a strong position but that he had a glaring “gender gap”—much weaker support among women than among men.

On October 14—three weeks before the presidential election—Reagan sought to narrow that gap. At a press conference, he declared that it was “time for a woman to sit among our highest jurists,” and he pledged that “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find.”

On Election Day, Reagan won in a landslide. He received 489 electoral votes to Carter’s 49 (and Anderson’s zero), and he bested Carter in the popular vote by a margin of nearly 10 points. In an even bigger surprise, Republicans flipped twelve seats in the Senate to win control of that body for the first time since 1955.

In the spring of 1981, Justice Potter Stewart, whom Dwight Eisenhower had appointed to the Court in 1958, informed the White House that he would be retiring.

***

The tremendous strides that women have made in the legal profession over the past several decades can make it easy to forget how different things were in 1981.

Consider the federal appellate courts, which have long been a reliable source of Supreme Court candidates. Florence Allen became the first woman to serve on a federal court of appeals when FDR appointed her to the Sixth Circuit in 1936. It would be more than thirty years before LBJ made Shirley Hufstedler the second by putting her on the Ninth Circuit in 1968.

When Reagan became president, the eleven sitting federal appellate judges who were female had all been appointed over the past two years by Carter. Most of them were very liberal. Only Sixth Circuit judge Cornelia Kennedy invited careful consideration from the Reagan administration. Richard Nixon had appointed Kennedy to a federal district court in 1970. When Carter nominated her to the Sixth Circuit in 1979, liberal groups opposed her as too conservative, and Senator Ted Kennedy, chairman of the Senate Judiciary Committee, was one of four Democrats on the committee to vote against reporting her nomination to the Senate floor.

The federal district courts also weren’t promising. Because the work of a district judge involves much less writing and little or no collaboration with other judges, it’s much more difficult to gauge whether a district judge would make a quality Supreme Court justice. That helps explain why Edward Terry Sanford in 1923 was the last federal district judge to be elevated directly to the Supreme Court. In any event, only six women had been appointed to the federal district courts before Carter became president, and the only one besides Kennedy who had been appointed by a Republican president was Mary Anne Richey, appointed by Gerald Ford in 1976. Richey was already 63 when Reagan was inaugurated.

What about state supreme courts? Here too, Florence Allen was a pioneer, as she became the first woman to serve on a state supreme court when she joined the Ohio supreme court in 1923. It was another 36 years before Rhoda Lewis became the second (Hawaii in 1959). There were 17 more female state supreme court justices over the next two decades. But if there is a conservative or even a moderate somewhere among the likes of Shirley Abrahamson (Wisconsin in 1976), Rose Bird (California in 1977), or Jean Dubofsky (Colorado in 1979), I’m not seeing her.

***

The most prominent conservative female lawyer in 1981 was surely Phyllis Schlafly, leader of the successful campaign to defeat ratification of the Equal Rights Amendment. But her career was as a political activist. She went to law school in her mid-50s and had been a licensed lawyer for less than three years when Stewart retired. Whether she had practiced law much at all in those years is unclear, but no one would have regarded her as a suitable candidate.

***

In sum, if Reagan was looking for a Republican or conservative woman to put on the Supreme Court, there weren’t a lot of candidates. We’ll turn next to the serendipities that explain how he ended up selecting Sandra Day O’Connor.

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***

Jon Kyl was elected to the Senate in November 1994. In filling the seat vacated by moderate Democrat Dennis DeConcini, Kyl was one of eight Republicans to win a seat that had been held by a Democrat. Those victories gave Republicans control of the incoming Senate in 1995.

As my boss Orrin Hatch became chairman of the Senate Judiciary Committee, Kyl and three other new senators—Fred Thompson (Tennessee), Mike DeWine (Ohio), and Spencer Abraham (Michigan)—fortified the Republican contingent on that committee.

After my work the previous two years on Bill Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, I didn’t stick around for very many months to enjoy the new Republican majority. As I’ve explained, I thought it unlikely that another Supreme Court vacancy was in the offing, and I was tired of internal fights with the front office to get Hatch to advance the principles he avowed.

Even in the short time that I saw him in action, Jon Kyl made quite a favorable impression on me. That impression deepened over the years, as I worked with him and his senior counsel on major judicial-confirmation fights.

Stephen Higgins became Kyl’s staffer on Judiciary Committee right at the outset, in January 1995, and continued as his chief counsel all the way until Kyl’s departure (well, his initial departure) from the Senate 18 years later. I invited Stephen to explain what made Kyl so effective, and here’s what he told me:

Senator Kyl was an exceptional senator and a great person. He was brilliant, a quick study, very attentive to detail while always keeping the big picture in mind. He had sound judgment and high character. He played fair and avoided cheap shots. He was very good at listening to the other side and responding point by point. He was tenacious, indefatigable, fearless, and selfless. He wanted to get good things done and stop bad things from being done, and he didn’t care who got the credit.

***

Senator Kyl became chairman of the Senate Republican Policy Committee at the end of 2002, after victories in November gave Republicans narrow control of the incoming Senate. During the preceding eighteen months (from the time that Senator Jim Jeffords left the Republicans to caucus with the Democrats), Senate Democrats had been able to use their control of the Senate to block any action on judicial nominees of George W. Bush whom they disfavored. Now that they would be back in the minority, Kyl knew that they would escalate their obstruction, especially of Miguel Estrada’s nomination to the D.C. Circuit.

Kyl knew that Senate Democrats were seriously considering filibustering the Estrada nomination. But he was hopeful that they would take the long view and realize how damaging it would be to blow up the Senate’s longstanding consensus against partisan filibusters of judicial nominees. As Kyl’s Policy Committee lawyer, Steven Duffield, has explained (in my interview with him), the filibusters that the Democrats launched made judicial nominations a front-and-center Senate-wide controversy:

The Estrada filibuster and the other filibusters in 2003 that followed it changed everything. All the Senate Republican leaders—Majority Leader Bill Frist, Whip Mitch McConnell, Conference Committee Chair Rick Santorum, Policy Committee Chair Kyl, and Conference Committee Vice-Chair Kay Bailey Hutchison—were personally engaged and focused on breaking these filibusters.

When it became clear that Republicans weren’t going to be able to defeat the filibusters, Kyl directed Duffield to develop the case for eliminating the judicial filibuster by a vote of the majority of senators. The prospect of abolishing the filibuster became real after Republicans expanded their majority to 55 senators in the 2004 elections. As we have seen, the Gang of 14 Agreement in 2005, engineered by Kyl’s fellow home-state senator John McCain, prevented a Senate floor vote on abolishing the filibuster. But the Gang of 14 Agreement, and all of the good things that flowed from it, would never have happened without Kyl’s determination to defeat the judicial filibuster.

***

On September 29, 2005, the Senate confirmed George W. Bush’s nomination of John Roberts as chief justice. Four days later, Bush shocked legal conservatives by nominating his White House counsel Harriet Miers to fill Sandra Day O’Connor’s seat. The White House very much hoped that Miers’s meeting with Kyl would help to quell the conservative revolt against her nomination. Kyl had been ecstatic about Roberts’s performance, both in the private meeting that he had with him and at his hearing. But when Kyl met one on one with Miers for 90 minutes, he appeared to have a very different take. He made no public statement about the meeting, but his silence spoke volumes.

Kyl was instrumental in the collapse of Miers’s nomination. I’m reliably informed (and it’s no surprise at all) that Kyl’s perspective and opinion were very influential with senior White House officials. In late October, Kyl told the White House that Miers’s nomination wasn’t going well and that he didn’t think she’d get confirmed. That message, coming from him, was sufficient to persuade the White House to abandon the nomination. (I believe that I am the first to report these details.)

The following Monday, Bush nominated Samuel Alito to O’Connor’s seat.

***

Jon Kyl retired from the Senate—or so he thought—in January 2013. Five years later, when Donald Trump nominated Brett Kavanaugh to the Supreme Court, Kyl accepted the White House’s invitation to be the Senate sherpa for Kavanaugh. But in an unexpected twist, after John McCain’s death in late August 2018, Arizona governor Doug Ducey appointed Kyl to fill McCain’s seat. So it was that on October 6, 2018, Kyl cast his vote in support of Kavanaugh’s confirmation.

Kyl resigned from the Senate at the end of 2018.

Jon Kyl, R.I.P.

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For federal appellate panels, the judge in active service with the highest seniority presides over oral argument, leads the post-argument conference in which the judges decide how they will vote, and (when in the majority) assigns opinions. Seniority also affects who is next in line to become chief judge. And it’s the tiebreaker for various other matters.

Some months ago, I invited readers to pass along their own confirmation tales. Chip Cowell, a retired attorney from Houston who clerked for Judge Betty Binns Fletcher early in her tenure on the Ninth Circuit, passed along one story that highlighted special efforts to ensure that Judge Fletcher had seniority over a colleague, Jerome Farris, whose nomination was confirmed by the Senate on the same day as hers.

Ironically, in exploring this matter, I discovered that Fletcher may have been inattentive to her seniority relative to a colleague, Mary Schroeder, who received her judicial commission the same day Fletcher did. Under the law, Fletcher should have been senior to Schroeder. But the Ninth Circuit instead accorded Schroeder seniority over Fletcher. And I seem to be the first person to have noticed the decades-long error.

***

The Omnibus Judgeship Act of 1978, signed into law by President Jimmy Carter in October 1978, created 35 new federal appellate judgeships (as well as 117 new federal district judgeships)—a 36% increase in the number of federal appellate judgeships. Its impact on the Ninth Circuit was especially dramatic. It increased the number of seats on that court from 13 to 23—a whopping 77% increase.

Carter acted swiftly to fill the new seats, and he had a clear path. Senator Ted Kennedy, the new chairman of the Judiciary Committee, was eager to help Carter achieve his goal of appointing liberal judges who satisfied sex/race/ethnicity diversity criteria. And Democrats had a huge majority in the Senate.

In 1979 alone, Carter appointed nine judges to the Ninth Circuit. Carter nominated Betty Fletcher and Jerome Farris to Ninth Circuit seats in the state of Washington on the same day in July 1979. The Senate confirmed their nominations on the same day, September 26, 1979.

As Cowell recounts the story, the two Democratic senators from Washington, Warren Magnuson and Henry (“Scoop”) Jackson, championed Fletcher, who was prominent in Seattle legal circles: she was the first woman partner at a major law firm in the city and was the first female president of the county bar association. Although Farris was a state court judge in Seattle, they did not know him well. As Farris recounts in an oral history, he had been referred to Carter by a mutual friend in the Georgia legislature.

Magnuson and Jackson were savvy. They were determined to ensure that Fletcher had seniority over Farris, so they arranged for Carter to issue his judicial commission to Fletcher on September 26 and to wait until the next day, September 27, to issue Farris’s commission.

When judges on the same court occupy the same courthouse, seniority has consequences. As Cowell told me:

This meant that in Seattle Judge Fletcher was always senior to Judge Farris. This resulted in Judge Fletcher occupying one of two graciously appointed judicial chambers on the ninth floor of the federal courthouse in Seattle, with views out across the Seattle downtown and Seattle’s gorgeous harbor. So while Fletcher had chambers on the same floor as veteran Ninth Circuit judge Eugene Wright, Judge Farris was provided with chambers on a much lower floor, at least until Judge Wright took senior status in 1983.

The one day of seniority also meant (as I came to understand it) that from the date Judge Wright took senior status until Judge Fletcher herself took senior status in 1998, Judge Fletcher was the de facto decision-maker for many Seattle courthouse matters. I definitely recall hearing the scuttlebutt that Judge Farris was understandably less than pleased with the misfortune of being beaten out by a day.

***

One day before it confirmed the nominations of Fletcher and Farris, the Senate confirmed two other Ninth Circuit nominees, Otto Skopil and Mary Schroeder. President Carter issued judicial commissions to Skopil and Schroeder on September 26, 1979—the same day as his commission to Fletcher.

You might think that Skopil and Schroeder would have seniority over Fletcher by virtue of having been confirmed a day earlier. That’s evidently what Ninth Circuit chief judge James Browning and his court administrators assumed. But federal law—namely, subsection 45(b) of Title 28—stated (and in its current version still essentially states):

The chief judge shall have precedence and preside at any session of the court which he attends. Other circuit judges shall have precedence and preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age.

(The second sentence of this subsection was amended in 1982 to clarify that it is addressing seniority among judges of the court “in regular active service.”)

Under subsection 45(b), then as now, the date on which the Senate confirms a nominee is irrelevant to seniority. What matters is the date of their commissions. And when judges have commissions that bear the same date, seniority among them is determined by age.

Skopil was born in 1919. Fletcher was born in 1923. Schroeder was born in 1940. So the order of seniority among the three should have been Skopil, then Fletcher, then Schroeder.

The Ninth Circuit instead treated Schroeder as senior to Fletcher for the entire period—more than 19 years—in which they were both in active service. According to my trusty research assistant (who used AI), over those 19 years there are some 350 decisions, published (such as this one) and unpublished, in which Schroeder presided over a panel that included Fletcher. There are no decisions in which Fletcher presided over a panel that included Schroeder.

***

A proper understanding of subsection 45(b) puts a slightly different spin on the Washington senators’ effort to ensure that Fletcher had priority over Farris. Farris was born in 1930, so even if Carter had commissioned Fletcher and Farris on the same day, Fletcher would have had seniority over Farris.

Perhaps the Washington senators were no more familiar with subsection 45(b) than the Ninth Circuit chief judge was. Or perhaps they didn’t know that Fletcher was older than Farris. Or perhaps they just wanted to make sure that Farris somehow didn’t get commissioned a day earlier than Fletcher did.

In any event, Judge Fletcher got her beautiful chambers but she somehow ended up being denied her seniority over Judge Schroeder.

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I continue here my conversation with federal district judge Patrick J. Schiltz. (See “An Early Look at Scalia-Ginsburg Friendship” for our first exchange.”) Judge Schiltz was a law clerk to Scalia on the D.C. Circuit when Reagan nominated Scalia to the Supreme Court. Schiltz assisted Scalia throughout the confirmation process and went on to clerk for him during his first term on the Court.

Q. When you were finishing up your D.C. Circuit clerkship with then-Judge Antonin Scalia in the summer of 1986, the Supreme Court had its oldest set of five justices ever. Was there a lot of anticipation among you and your fellow D.C. Circuit law clerks about the prospect of a vacancy?

Yes, for sure. All of the judges on the D.C. Circuit—and all of their law clerks—worked in the same building. This was long before COVID normalized working from home. People came to the office every day, had lunch in the same cafeteria, rode the same elevators, saw each other in the hallways. It was a gossipy place.

The most common subject of gossip was whether a Supreme Court justice would retire—and, if so, whether he would be replaced with Judge Bork or Judge Scalia. I don’t recall a third candidate being discussed. The debate among the conservative clerks was about whether Judge Bork or Judge Scalia should be nominated first.

I was, of course, on Team Scalia. In retrospect, though, it seems clear that, if Judge Bork had been nominated first, both of them would have served on the Supreme Court.

Q. In late May 1986, Chief Justice Burger privately informed President Reagan that he would be retiring. The White House seems to have done an excellent job of preventing leaks. When did you first learn of the vacancy?

I had no clue until the morning of Tuesday, June 17, when Judge Scalia called me into his office, asked me to shut the door, and told me that he was on his way to the White House, where the President would announce that Chief Justice Burger was retiring, Justice Rehnquist would take his place, and Judge Scalia would take Justice Rehnquist’s place. The previous day, I suspected something might be up. Judge Scalia had his door shut much of the day (which was unusual), and he disappeared in the middle of the day (ditto).

After he told me, I mentioned how sad it was that neither of his parents had lived to see this day. His mother had died in December, and his father had died a couple of weeks later. He choked up a little bit and said that he was also sad. We agreed, though, that they must be celebrating in heaven.

Q. Were you aware of the Attorney General’s conference on Saturday, June 14 at which Judge Scalia proposed rechristening original intent as original meaning?

No. Judge Scalia frequently gave speeches and rarely asked for assistance with those speeches from his clerks. I don’t think I even knew of the June 14 conference until I read about it in the book of Justice Scalia’s speeches [Scalia Speaks: Reflections on Law, Faith, and Life Well Lived] that you published.

Q. Did you attend the White House announcement ceremony? Any recollections?

Nope. No clerks.

Q. What do you recall of June 17 after Judge Scalia returned to chambers?

At the end of the day, as was our practice, Judge Scalia and I went for a run around the Washington Mall. I had worked on Capitol Hill for Senator Dave Durenberger (R-Minn.) before going to law school, and one of my jobs had been to cover Justice O’Connor’s confirmation hearings. So I knew a lot about the Senators who served on the Judiciary Committee. I spent much of the run briefing him about those Senators. And during the run – although his nomination was the lead story in the national and local media – not a single person showed any sign of recognizing him.

Q. What about the rest of that week?

I remember that the telephone rang constantly. Judge Scalia got lot of calls from friends, reporters, and Supreme Court justices. Sometimes, after a call from a justice, he would come into the clerks’ office (we all shared one large office) and describe the call.

Two phone calls stick out in my memory. I can recall Judge Scalia describing Justice Brennan’s warm and gracious greeting. That was Justice Brennan; Judge Scalia loved him. And I can recall Judge Scalia saying that Justice Rehnquist had called at Justice Blackmun’s behest because Justice Blackmun had heard that Judge Scalia smoked and he wanted to make sure Judge Scalia knew that smoking was forbidden during Conference. That was Justice Blackmun.

Q. Did you play any role in preparing Judge Scalia for his confirmation hearing?

Yes. I was supposed to clerk with Justice O’Connor after clerking with Judge Scalia, but he asked me to stay to help him prepare for his confirmation hearings and then to clerk for him during his first year on the Supreme Court. He said that, if I agreed, he would call Justice O’Connor and smooth things over with her. I agreed, he called her, and she called me. She couldn’t have been nicer about letting me out of my commitment. She said that she had taken one or more of her law clerks from the Arizona Court of Appeals (I can’t recall how many) with her when she joined the Court, and it meant a lot to her to have people in chambers whom she knew and trusted during her first year in the spotlight.

Q. What, then, did you do over the summer?

My main role was to put together “briefing books” for Judge Scalia to read. These books mostly consisted of summaries of his opinions. I don’t know whether or to what extent he ever read them. I also had to proofread and “cite check” the various documents that he had to submit, such as his responses to the ABA and Senate questionnaires.

I also went to some meetings with him. I believe that the first meeting was at the White House, although it might have been at the Old Executive Office Building. We were in a large conference room. [Nominations sherpa] Tom Korologos ran the meeting and sat at one end of a long table. Judge Scalia sat at the other end. There were a lot of people crammed in the conference room—senior aides, junior aides, aides to aides, interns, whatever.

Tom started the meeting by describing how the White House expected the Rehnquist and Scalia proceedings to unfold. Tom then started asking Judge Scalia questions. One of the first was whether there was anything at all in Judge Scalia’s background that, if it came to light, could embarrass him: arrests, abuse, drug use, infidelity? This was in a room full of 25-year-olds with pens poised over their legal pads. The judge looked at me and rolled his eyes.

Judge Scalia did not find the meeting very helpful.

Q. Did Judge Scalia participate in any murder boards?

I can remember one murder board. I may have forgotten about others; this was 40 years ago.

You have to bear in mind that this was a different era. Judge Bork had not yet been “Borked”; confirmation hearings were still (relatively) civil; and a well-qualified nominee could still hope to be confirmed unanimously (as Judge Scalia was). Also, at this time, the bête noire of the political left was Justice Rehnquist. All of the energy of the political left was devoted to stopping Justice Rehnquist’s confirmation. Judge Scalia flew under the radar.

The one and only issue with which I remember Judge Scalia struggling was how to hold the line on not commenting on prior Supreme Court decisions or issues likely to come before the Court. He went back and forth on that. Finally, [senior DOJ official] Brad Reynolds came to chambers for what was essentially a one-person murder board on one topic. Brad pressed the Judge very hard on Brown v. Board: Was it rightly decided? Was it “settled law”? No, you won’t even say that Brown was correct? Yes, but how then can you reconcile Brown with your views about original meaning? The Judge struggled. Eventually, he decided that he would hold a hard line, which he did.

Q. Did Judge Scalia do meet-and-greets with Senators?

Yes. I did not attend, but he told me about some of them when he returned to chambers. He kind of enjoyed them. There wasn’t a lot of discussion about law. They were mostly just chit-chat, and they gave him a chance to turn on the charm.

For someone who had been in or around government much of his life, Judge Scalia had surprisingly little interest in or knowledge of backroom politics. He relied a lot on his close friend and D.C. Circuit colleague Judge Larry Silberman for advice about how Washington worked.

Q. As the date of his confirmation hearing drew close, did Judge Scalia show any sign of nerves?

Honestly, no. Maybe Maureen Scalia or the Scalia children saw something different at home, but I remember him as being joyful during the two months between his nomination and confirmation hearing. He seemed to have no doubt he was going to be confirmed, he seemed to enjoy the attention, and he definitely was itching to start work at the Supreme Court.

***
I look forward to completing my conversation with Judge Schiltz.

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.

***
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.