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Month: April 2016

Advice & Consent 07: Nominations Past Vol. 1 – Rehnquist/Powell 1971

On this episode… With the airing of Confirmation on HBO, the ghosts of confirmations past have been brought back to the public eye. The next several episodes we’ll talk about some of them.


Direct download:  (mp3)

April 28, 2016…


Today’s the day CJ Garland should have started his confirmation hearing. 42 days: that’s the number of days on average for the past 30 years that Supreme Court nominees have waited for a Senate Judiciary Committee hearing. And since President Obama nominated Chief Judge Merrick Garland on March 16, that means he should have started the confirmation process April 28th (today)!

Nominations Past Vol. 1 – Rehnquist/Powell 1971


Disclaimer I chose this hearing for personal reasons.  My father-in-law testified at the hearing, and I was very interested to read the transcript and see exactly what happened.  I love Supreme Court hearings.  I decided I wanted to be a lawyer after the Bork hearings.  The Thomas hearings, which we’ll hear about later, were quite a spectacle, and I’ve had personal involvement in the nomination fights of Roberts, Alito,

Background: Rehnquist and Powell were nominated at the same time.  They testified separately–they weren’t on a panel together–but they testified in succession and the outside witnesses were not separated.  

The nomination fight happened at the conclusion of a very busy period for Supreme Court nominations.  Turnover not seen since the 1930s when FDR, after his court-packing scheme failed, nevertheless got to reshape the Court.  In 1968, Warren announced retirement.  LBJ tried to fill his seat with Associate Justice Fortas (and nominated Homer Thornberry for Fortas’ seat).  The Senate filibustered the nomination.  Nixon came into power and nominated Burger whom the Senate confirmed.  Then Fortas was forced to resign his associate justice seat because of financial improprieties.  Nixon nominated first Carswell and then Haynesworth and both were rejected, the first because he was an on-the-record segregationist and the second because of both his civil rights record and his general mediocrity.  Nixon then nominated Harry Blackmun who was seen as conservative but, pushed by revulsion from the religious right over Roe, turned very liberal.  

Then both Hugo Black and John Marshall Harlan (Harlan the younger) decided to resign and Nixon sent six names to the ABA, which has since Eisenhower’s time rated judicial nominees, including the first woman to receive such consideration.  The ABA said it would not recommend any of the six, so Nixon put up surprise nominees Lewis Powell and William Rehnquist.

Powell was a bar leader, previous president of the ABA and practicing lawyer in Richmond, Va.  Rehnquist was an Arizonan but had been in DC to clerk for Justice Robert Jackson and came to DC with Nixon and was head of the Justice Department’s Office of Legal Counsel.  When statute or the White House asks the Attorney General for advice, the Office of Legal Counsel does the research and writes the opinion (unless of course, the AG declines to ask OLC to do that work on a particular issue or, once the OLC opinion is written, the AG rejects the OLC’s position).
The hearings had gotten more contentious following Brown (as well as Miranda, Mapp, Gideon, but we shouldn’t kid ourselves, Brown is the reason, not criminal procedure).  Thurgood Marshall had been questioned for 5 consecutive days.  The chairman of the Committee and the next two senior Democrats were southern segregationists.  The Republicans had moved from pro-civil rights to the nascent Southern Strategy following their winning the Deep South in 1964 behind Civil Rights Act opponent Barry Goldwater.
Feel for the hearings:  One Senator on the Committee was also present for the Roberts/Alito hearings that we’ll discuss at the end:  Ted Kennedy.  Strom was present for Bork and Thomas but retired in ‘02  But these hearings were so long ago, that one of the most active questioners now has his name on the building in which the Senate now conducts Supreme Court hearings:  Phil Hart.  Another active Senator was the father of a Senator at the time of Roberts/Alito:  Birch Bayh.  Finally, one Senator referred to himself as one of the young senators, but not from our perspective, he was the son of Gene Tunney, the heavyweight boxing champ in the 1920s.
There were other famous (or at least DC famous) names:  Robert Bork wrote a letter in support of the Rehnquist nomination, an Arizona senator cited as “Sandra D. O’Connor” was quoted by an Arizona congressman in favor of the nomination.  Rep Mo Udall (D-AZ) put in a statement supporting Rehnquist (his son and nephew both became Senators).  And, as an aside, my wife’s and my property law professors spoke in favor of the nomination.
Some things were very different.  For example, the word abortion was not mentioned until page 450 or so of the 498-page transcript.  For the record, when the Court decided Roe a little more than two years later, Rehnquist was one of two dissenters while Powell was in the majority.  When abortion came up, it was because a group of anti-abortion rights Long Island women testified that the Senate should inquire about the issue.  The next panel consisted of an anti-abortion man, and he commented that he was impressed by the “bevy of beauties that had come before” him and how disappointed the senators who were called away by a roll-call vote must have been because those women were so “pleasant to look at.”
When another panel of women was called, consisting of the head of the National Women’s Political Caucus and the head of NOW (these two panels were the only women to speak in the 498 pages), one of them testified that a dean at Harvard had said that they had decided to increase law school class size and therefore were likely going to admit more women because it was a choice between women and “homosexuals and cripples.”  (The first Supreme Court decision striking down an anti-gay law, Roemer v. Evans, was 25 years away with Rehnquist in dissent/the Americans with Disabilities Act was 20 years away.)
Another difference:  The chairman of the Committee, segregationist Sen. James Eastland (D-MS) asked only whether Rehnquist received the top rating in the Martindale-Hubbell legal directory and how long he had held that rating.  He asked no questions of Powell and indicated he was voting in favor of both nominees.  However, as different as he was from the liberal wing of the party, he was such a partisan that he let all the Democrats ask their questions first before the Republicans.  The next two questioners, as a result, were segregationist Democrats with liberal Democrats following and the Republicans beginning at suppertime.
Some things were not so different.  Liberals repeatedly complained that Rehnquist refused to answer questions, hiding behind the need to keep the advice he gave the attorney general and the president confidential and the need not to prejudge cases that came before him.  Civil rights then as now was a big topic as was whether the Founders’ intent/original meaning of the words was the only factor that mattered in constitutional interpretation (those who say Scalia invented originalism are dead wrong), the standard for overturning precedent, and whether judges could separate themselves from their personal views.
As happens at every hearing these days, at least one senator stressed to Rehnquist that he was young and this was a lifetime appointment, so he might still be on the bench in the year 2000 (true.)

Four very big issues in the hearing:  

  1. Rehnquist’s opposition to a Phoenix ordinance banning discrimination by bars and restaurants, which Phoenix adopted at the same time as the federal Civil Rights Act of 1964,
  2. whether Rehnquist had engaged in voter suppression by going to black precincts in Phoenix and asking intimidating questions about the AZ Constitution to those standing in line,
  3. Rehnquist’s support for warrantless wiretaps if the matter involved domestic national security, and
  4. to show perhaps that domestic national security was a real issue then, whether Rehnquist had supported a declaration of partial martial law when anti-war protesters tried to shut down the federal government on May Day 1971 by clogging the commuting arteries (the DC Metro was still several years from opening).

Women’s rights barely made an impression, although that was about to become a huge battle.  Rehnquist and Powell both voted in Frontiero v. Richardson soon after confirmation to prevent sex discrimination from being treated with as much suspicion as race discrimination by the Supreme Court, but Powell and Rehnquist both voted no.  When the Supreme Court compromised on intermediate scrutiny for sex discrimination, Powell said yes.  Rehnquist still said no.
My father-in-law pointed out that Rehnquist’s view on segregated restaurants was so extreme that at a time when ¾ of the Senate was voting for a law banning such discrimination on the federal level, Rehnquist was attacking such a law at the state level.  Moreover, even Barry Goldwater, who voted against the Civil Rights Act of 1964 and soon thereafter became the first Republican to sweep the Deep South in history said that he voted that way because he thought Congress did not have the power to act, but he supported the local Phoenix anti-segregation law.  My father-in-law also pointed out Rehnquist’s extreme anti-desegregation views involving schools and his troubling record on voter suppression.
Powell was controversial because of speeches he had given decrying the solicitude of the Warren Court with criminal defendants, his attacks on leftists, his presence on Richmond and Virginia state school boards during massive resistance, and his membership in segregated golf clubs.  But he was a former ABA president, very much a John Roberts old-boys club man, and he had a lot of liberal support as a result.
Concluding Issue from hearing:  It turns out the Committee was unaware of the most important writings in the record of both Rehnquist and Powell.
For Rehnquist, he clerked for Justice Jackson in 1952 when Brown v. Board first came to the Court (it stayed there for 3 years before the Court resolved all the issues) and Rehnquist wrote a memo saying that Plessy had been correctly decided.  It was leaked on the eve of the Senate vote after the hearings were concluded.  Rehnquist said that Jackson had asked for a devil’s advocate position, but while Jackson did write devil’s advocate opinions that he never published, his other clerks said he had never asked for such a devil’s advocate informal memo.  In another memo, Rehnquist wrote that white people in the South don’t like colored people, and the Court had to face that fact.
For Powell, it was what’s now known as the Powell Memo, a memo he wrote to the head of the U.S. Chamber of Commerce that suggested capitalism was under attack from Nader-ites and other leftists including academia, politicians, the courts, and the media, that the business community was too blase about this fact.  He suggested the Chamber of Commerce engage in a great propaganda war, developing talking points, demanding equal time on campus for conservatives, demanding the same from the media, getting more involved in politics, and most importantly for his nomination, fighting in the courts on behalf of big business.  This led to Heritage, a different role for AEI, Cato, Chamber of Commerce amicus briefs, the work toward Citizens United, and more.
If either of these had come out before the hearing, the result might have been a lot different.
Vote: Rehnquist won confirmation 68-25 (he won chief justiceship 25 years later by a similar margin but that was with Republicans in control of the Senate, not Democrats).  Rs voting against

Brooke (MA) (first African American since reconstruction)

Case (NJ)

Javitz (NY).  
Other interesting no votes:  Gaylord Nelson (WI) founder of Earth Day, Fulbright, Gravel (do people remember him from ‘08? He threw a rock in the water), Kennedy, Scoop Jackson (the Lieberman of his day), and 3 losing presidential candidate, Humphrey, Mondale, McGovern.
Interesting yes votes: Margaret Chase Smith (voted against Carswell and Haynesworth) (didn’t actually vote, but recorded in support), Pell (of Pell grants fame) possibly the most liberal vote in favor.
Powell vote: 89-1.  The one nay vote came from Senator Fred Harris (D-OK) (he also voted against Rehnquist).
The big surprise:  The states rights revolution started by Rehnquist.  States rights was not a part of the hearings at all.  Rehnquist won one of the only states rights victories between 1937 and 1995 in National League of Cities v. Usury (there are traditional areas of state control where feds can’t intrude).  That was overturned, but he won a more lasting victory when he was chief by striking down 2 statutes on 10th Amendment grounds and several more on 11th Amendment grounds.
The predictions were right.  Rehnquist was hard right.  Powell was center-right.

On civil rights:  Rehnquist never decided a case involving race discrimination claims in favor of a minority claimant.  The one area in which he sided with the civil rights claimants was sex discrimination.  
Both Powell and Rehnquist helped stop federal enforcement of school desegregation cold with cases like Milliken v. Bradley saying that you couldn’t desegregate across local school district lines in almost any case.  But Powell cast the deciding middle-ground vote allowing affirmative action in college for reasons of diversity, but not past society-wide discrimination.
Already discussed women’s rights.
They both voted to curtail rights of the accused, but when the chance finally came to overrule Miranda, Rehnquist blinked in the 2000s.  (Powell had long since left the Court).
A big issue at the hearing, warrantless wiretapping in the name of domestic national security, came up almost immediately in the Keith case (United States v. U.S. District Court).  Powell wrote the decision stating that such wiretaps were unconstitutional if it was purely a domestic issue.  Rehnquist recused himself because he dealt with the issue for the Nixon administration.  By the time it became an issue again, post 9/11, both were gone from the court.

NEXT WEEK… Volume 2: Robert Bork (1987).

Advice & Consent 06: What does a 4-4 Court mean?

Advice & Consent 06: What does a 4-4 Court mean?

Direct download:  (mp3)

What does a 4-4 Court mean?



  • Fisher v. University of Texas, the affirmative action case.
  • Whole Woman’s Health v. Hellerstedt (abortion in Texas)
  • United States v. Texas (immigration DAPA/DACA) (what is it with Texas?)
  • Criminal procedure cases–Supreme Court rejecting a hem wholesale so far
  • Class action cases–ditto


  • Maybe not often are 4-4s issued, but even in cases of a fully staffed SCOTUS recusals can cause issues. I
  • Issues are being taken up at the Court and questions being asked.
  • Justices coming out of the gate saying “no big deal; we got this” to shore up confidence in the Supreme Court
  • Justice Kagan saying that they’re trying to avoid deadlocks (Supreme Court is Working Hard to Avoid Deadlocks, Kagan Says) trying to only pull cases where they won’t be closely split; so decisions all the way through – from cert to final judgement are implicated
  • Zubik supplemental briefing
  • How long will this will go on?
  • Examples of how what the Court does or does not do actually impact a number of issues: business, 4th Amendment issues – local law enforcement


  • On a case-by-case basis, it can swing either way substantively depending on your point of view of the Court of Appeals holding.
  • Untenable in the medium and long term because it hampers the Court from its role in arbitrating Circuit splits.
  • This is not ideal and is fixable based on decades of precedent. If we have a vacancy, the President nominates and the Senate considers and votes. Period.
Advice & Consent 05: Trump's list, Grassley's chairmanship and tortured NFL draft analogies

Advice & Consent 05: Trump’s list, Grassley’s chairmanship and tortured NFL draft analogies


Advice & Consent 05: Trump's list, Grassley's chairmanship and tortured NFL draft analogies

Direct download: Advice & Consent 05: Trump’s list, Grassley’s chairmanship and tortured NFL draft analogies (mp3)

An all Mic Drop edition



Lena: Donald Trump’s “WHAT?” moment.“I’m going to announce that these are the judges, in no particular order, that I’m going to put up,” he told The Washington Post last week. “And I’m going to guarantee it. … Because people are worried that, oh, maybe he’ll put the wrong judge in.”

The “wrong judge”? WHAT? Plus the Heritage Foundation’s “wish list

Adam: Elephant in the room when speaking of Sen. Grassley and his odd comments about Roberts, his qui tam line of questioning at hearings. (BTW, If you want to know about qui tam, the Supreme Court is actually hearing a qui tam lawsuit next week, Universal Health Services v. United States ex rel. Escobar. See )

As people who followed the Iowa Senate race last year know, Grassley is not a lawyer. No requirement that Judiciary Committee members be lawyers. Sen. Dianne Feinstein, another long-time member of the Committee, is not a lawyer. But it IS unusual for a Judiciary Committee chairman not to be a lawyer. I went back to the Wilson administration (using Wikipedia, admittedly), the first time the Committee held a hearing on a nominee, and ALL the other chairmen (all men) were lawyers.

Not to say they were all winners. From 1956-1987, the Committee had a segregationist as chair, excluding 3 years in the 70s when Ted Kennedy was chair.

It is possible to learn a lot about the law by being involved in legal issues for years, but Grassley has had other priorities, Ike oversight, chairing Finance Committee.

Tim: Semi-attenuated #sportsball analogy: there are parallels between SCOTUS nominations gone wrong and (poorly) drafting NFL quarterbacks… hi Browns, hi Bills, hi Jets… hello GOP Presidents. See the list of “mistakes” here.

Advice & Consent 04: Wait, we take it all back

Advice & Consent 04: Wait, we take it all back

Advice & Consent 04: Wait, we take it all back

Direct download: Advice & Consent 04: Wait, we take it all back (mp3)

The Chatter


Today’s Topic: Reacting to the GOP Senators’  “nevermind, we take it all back”

Judge Garland has met with 17 Senators as of today, the latest being Judiciary Committee member Sen. Whitehouse (D-RI). However, the cracks we saw last week in the GOP seem to have been puttied and plastered over as a few have backtracked on even meeting President Obama’s Supreme Court nominee.

From NYT:

Senators Jerry Moran of Kansas and Lisa Murkowski of Alaska have reversed themselves and say they now back the decision made by Senator Charles E. Grassley of Iowa, chairman of the Judiciary Committee, not to hold hearings.

Carrie Severino, chief counsel for the Judicial Crisis Network: “These meetings are non-events, no matter how badly the White House wishes the opposite were true,” she said in a statement. “The only reason we hear anything about these courtesy meetings is that the White House is desperate to spin every act of political theater into a sign of life for the nomination.”


Despite the hyperbole, Senator Collins noted on MSNBC that 14 GOP senators are willing to meet with Judge Garland, stating “I view that as an evolution.” What does this mean for the nomination? Is this a deathblow, or just part of the political back and forth that is just heating up as the issue percolates back to the Senators’ home states?

A running list we’ll keep updating:

List of GOP Senators willing to take a meeting (or have already met):

  • Kelly Ayotte, N.H.
  • John Boozman, Ark.
  • Bill Cassidy, La.
  • Susan Collins, Me.
  • Jeff Flake, Ariz.
  • Charles E. Grassley, Iowa
  • James M. Inhofe, Okla.
  • Ron Johnson, Wis.
  • Mark S. Kirk, Ill.
  • James Lankford, Okla.
  • Jerry Moran, Kan.
  • Lisa Murkowski, Alaska
  • Rob Portman, Ohio
  • Jim Risch, Idaho
  • Mike Rounds, S.D.
  • Marco Rubio, Fla.
  • Patrick J. Toomey, Pa.

GOP Senators who support holding hearings and/or a vote

  • Susan Collins, Me.
  • Mark S. Kirk, Ill.

Number  of GOP stonewallers (no meetings, no hearings, no way): 45

Source: NYT

Lena: The lame duck argument

Adam: enthusiasm gap

Dan: Mr. Johnson from Wisconsin’s got your back Wisconsin

Tim: External versus internal pressure

Mic Drop

Lena:  “What?” and Chief Justice Roberts fails purity tests.

Adam:  What’s Judge Garland doing to keep busy? Probably not murder boards.

Dan: Garland would bring it all back to 2006.

Tim: Iowa high schooler Jake Smith drops a mic on Sen. Grassley.