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Holding hearings for Merrick Garland would actually help Senate Republicans. Here’s how.

- April 19, 2016
The chair of the late Supreme Court Justice Antonin Scalia is draped in black crepe, a tradition dating to 1873, at the Supreme Court in February. (Michael  Reynolds/European Pressphoto Agency)

According to some polls, nearly two-thirds of Americans believe that the Senate should consider President Obama’s nominee, Judge Merrick Garland, to fill the Supreme Court seat vacated by Antonin Scalia’s death. Senate Republicans have refused to do so, marking the first time that opponents of a president’s Supreme Court nominee have blocked hearings entirely.

Is this really in their best interest?

History suggests not. The most effective way to challenge a presidential Supreme Court nomination has been to conduct hearings and allow members of the Senate Judiciary Committee to air their views on the court and its direction.

As a lame duck, LBJ nominated Abe Fortas for chief justice

President Lyndon B. Johnson’s attempt to replace Chief Justice Earl Warren during the contentious 1968 election is particularly illustrative. That June, Warren, at age 77, told Johnson that he thought it was time to step off the court. Johnson wasn’t running for president. He had dropped out of the Democratic nomination race in March after Sen. Eugene McCarthy (D-Minn.) ran a strong second to him in the New Hampshire primary.

Fearing that Richard Nixon would be elected in that November’s presidential contest, Warren — who despised Nixon — wanted Johnson to nominate his replacement. Johnson hoped to protect his Great Society programs from judicial challenges that might materialize if the court swung rightward. Although he had decided not to run for reelection, Johnson was still president, with all the constitutional authority the office commanded. He decided to promote his friend, Associate Justice Abe Fortas, to the Supreme Court’s center chair.

Johnson speculated that Fortas might not have to undergo a new confirmation process because the Senate had already approved him in 1965. Precedent indicated otherwise. The last time an associate justice was elevated to chief — in 1941, with Franklin D. Roosevelt’s promotion of Harlan Stone — the Senate had conducted hearings. Johnson would have preferred a pro forma confirmation of Fortas, but failing that, he didn’t think he would have to worry about the Senate refusing to hold hearings on his nominee.

Once they became the norm in the 20th century, hearings had never been denied for a Supreme Court nomination.

Republicans objected to holding hearings on LBJ’s nomination

But in this case, more than half the chamber’s 36 Republicans signed a petition calling for just that: refusal to hold hearings. They maintained that Johnson’s “lame-duck” status negated his authority to make a judicial appointment. The president, however, prevailed in the Democrat-controlled Senate, and GOP opposition to hearings crumbled as Republicans recognized their chance to “dramatize all the president’s political liabilities,” as Rowland Evans and Robert Novak wrote in The Washington Post.

GOP lawmakers did just that, joined by conservatives from the president’s own party. Fortas faced more than 12 grueling hours of questioning from senators, including Sam Ervin (D-N.C.) and Strom Thurmond (R-S.C.), who pilloried Fortas for his liberal activism: establishing a defendant’s right to an attorney in Gideon v. Wainwright and requiring police to inform suspects of their rights to a lawyer and against self-incrimination in Miranda v. Arizona. Both rulings challenged the “law-and-order” attitudes of Republicans and conservative Democrats.

Initially, Johnson reached out to Sen. James Eastland (D-Miss.), the conservative chairman of the Senate Judiciary Committee, to secure support for the Fortas nomination. Eastland complied, but as Fortas encountered strong headwinds and Democratic allies began to sour on the nominee, he scheduled a second round of hearings.

Fortas chose not to appear and answer charges that he had improperly accepted a $15,000 honorarium for teaching a seminar at American University funded by Wall Street investment bankers. Fortas’s opponents also accused him of crass cronyism and violating the separation of powers by providing counsel to the president on policy and speeches. Perhaps most damaging was the circulation of an obscene film that conservatives procured, claiming that Fortas had voted to protect it under the First Amendment’s free-expression guarantees. Even so, because Democrats held the majority on the Judiciary Committee, they moved the Fortas nomination to the Senate floor.

The hearings hurt Fortas — and pointed to a new direction for the court

By October, just one month before the 1968 presidential election, it was clear that conservative Democrats and Republicans would filibuster Johnson’s nominee. LBJ consulted with Senate Minority Leader Everett Dirksen (R-Ill.) by phone, warning, “We oughtn’t to let it be charged [that] Republicans are playing politics with the court … and you oughtn’t to set a precedent that an outgoing president can’t name anybody the last six or eight months.”

Johnson faced a dilemma, as Obama might in the coming months. If the Senate won’t act, should he withdraw the nomination? In an Oct. 1 phone call with Fortas, Johnson predicted that Nixon would win the presidency and nominate Warren’s successor. Bowing to the inevitable, Fortas told Johnson that he would step aside, using the excuse that the court’s new term was beginning and he had to turn his full attention to it. Dejectedly, the associate justice informed the president that he would have to “go with Nixon.” “I don’t think I can do that. I don’t — I’ve got to be president,” Johnson argued.

But no time remained to name a successor for Warren, who had to postpone his retirement for another term. In 1969, President Nixon nominated the chief’s successor — Warren Burger. And Fortas resigned after more financial improprieties came to light.

Today’s Senate Republicans might want to heed the lessons from 1968:

1. Hearings offer a really big platform.

First, hearings would provide GOP lawmakers with a platform not only to critique Garland but also to condemn liberal policies, court decisions and justices, as well as the Democratic Party — particularly President Obama and the candidate perceived as running for his “third term,” Hillary Clinton. The stage available for these theatrics is grand, as Supreme Court hearings would be watched live and in recordings on TV, the Internet and social media. To be sure, Garland would also have the stage, as would Democrats on the Judiciary Committee. But if the GOP refrains from hearings just to deny its opponents a chance to voice their views, Republicans will lose a valuable tool for spreading their own vision for where the court — and the nation — should be headed.

2. Hearings display the GOP’s seriousness and the Senate’s importance.

Hearings would allow GOP legislators to showcase their reverence for constitutional principles and reveal the Senate — currently in Republican hands — as a deliberative body that’s able to function as its creators intended. Voters reeling from an unsettling presidential contest might find that prospect reassuring.

The irony of Fortas’s nomination is that having originally sought to quash hearings, Republicans, who were campaigning that year on a law-and-order platform, arguably scored more political points in their grilling of Fortas than they might have otherwise. Conservative Democrats, many of whose districts would soon move into the Republican column, also probably benefited from the public airing of competing views. This historical convergence of partisan interest, ideological concern and constitutional governance suggests that current Republicans might want to reconsider the long-term pros and cons of their no-hearings strategy.

Barbara Perry is the White Burkett Miller Professor of Ethics and Institutions and director of presidential studies at the University of Virginia’s Miller Center and a former judicial fellow at the Supreme Court. Follow her on Twitter @BarbaraPerryUVA.

Marc Selverstone is associate professor and chair of the presidential recordings program at U-Va.’s Miller Center.