Why Supreme Court Confirmations Have Become So Bitter

March 17, 2022
Has lesson plan
Updated

The defeat of Robert Bork’s nomination to the Supreme Court in 1987 changed the way justices are confirmed today.

President Biden is hoping for bipartisan support for his nomination of Judge Ketanji Brown Jackson to the Supreme Court. But bitter battles over some recent nominations have set a different precedent.

When Ronald Reagan nominated Robert Bork to the Supreme Court in 1987, Bork’s conservative and often controversial views on civil rights, gender equality, the right to privacy and abortion were well known. As Judge Bork’s candid answers during his confirmation hearing revealed his conservative ideas, Democrats and even some Republicans became convinced that he should never sit on the Court. In the end, the defeat of Judge Bork’s nomination broke along party lines, setting the tone for the partisanship evident in the process today.

In the years since the Bork hearing, judicial nominees have revealed almost nothing publicly about their judicial philosophy, leaving Americans with little or no idea where they stand on defining issues.

Related: Want to Know Where Supreme Court Nominees Stand? Don’t Bother Asking by Clyde Haberman

Previous versions
At Retro Report, we update our journalism as news unfolds. Here are the previous published versions of this story.
For teachers
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  • Producer: Barbara Dury
  • Editor: Brian Kamerzel
  • Associate Producer: Meral Agish
  • Update Producer: Sianne Garlick
  • Update Producer: Sandra McDaniel
  • Update Editor: Cullen Golden
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For Educators

Subjects
Civics & Government U.S. History
Topics
Criminal Justice Politics Supreme Court
Introduction

This 10-minute video delves into how the nature of Supreme Court nominations have changed since the defeat of Robert Bork. One of the most influential roles played by the president of the United States is nominating justices to the Supreme Court. While the president has the opportunity to serve for four to eight years, Supreme Court justices have a lifetime appointment and can possibly serve for as long as 30 to 40 years. The process of nominating and confirming Supreme Court justices used to be fairly routine, with most nominees earning broad bipartisan support during confirmation votes. More recently, Supreme Court nominations have not followed suit.

Background reading
▼

When Ronald Reagan nominated Robert Bork to the Supreme Court in 1987, Bork’s conservative and often controversial views on civil rights, gender equality, the right to privacy and abortion were well known. As Judge Bork’s candid answers during his confirmation hearing revealed his conservative ideas, Democrats and even some Republicans became convinced that he should never sit on the Court. In the end, the defeat of Judge Bork’s nomination broke along party lines, setting the tone for the partisanship evident in the process today.

In the years since the Bork hearing, judicial nominees have revealed almost nothing publicly about their judicial philosophy, leaving Americans with little or no idea where they stand on defining issues.

Lesson Plan 1: Supreme Court Nominations & Confirmations
Supreme Court Nominations & Confirmations
SCOTUS Nominations - Primary Source Analysis
Supreme Court Nominations & Confirmations Quantitative Analysis FRQ
SCOTUS Nominee Hearing
U.S. Supreme Court
Overview
▼

Students will examine the nomination and confirmation process for Supreme Court Justices and learn why the judges often reveal so little.

Objectives
▼

Students will:

  • Examine primary source documents to understand the stakes involved in Supreme Court nomination hearings.
  • Critique the Senate’s “advice and consent” function of the confirmation process.
  • Formulate questions for a Supreme Court confirmation hearing.
Essential questions
▼
  • What are the steps involved in the nomination and confirmation process for Supreme Court justices?
  • What kind of controversies arise during the confirmation process for Supreme Court nominees?
  • Why has the confirmation process for Supreme Court nominees become so partisan and polarizing?
Additional resources
▼
Standards
▼
  • AP Government and Politics
    • Unit 2: Interactions Among Branches
    • Disciplinary Practice 1.b.Explain political principles, institutions, processes, policies, and behaviors.
    • Unit 1: PMI-1.A.1The powers allocated to Congress, the president, and the courts demonstrate the separation of powers and checks and balances features of the U.S. Constitution.
    • Unit 2: CON-4.A.1:Presidents use powers and perform functions of the office to accomplish a policy agenda.
    • Unit 2: CON-4.B.2:Senate confirmation is an important check on appointment powers, but the president’s longest lasting influence lies in life-tenured judicial appointments.
    • Unit 2: CON-5:The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice.
    • Unit 2: CON-5.C:

      Explain how other branches in the government can limit the Supreme Court’s power.

      • CON-5.C.1: Restrictions on the Supreme Court are represented by Judicial appointments and confirmations.
  • AP Human Geography
    • Unit 4: Political Patterns & Processes
  • National Council for the Social Studies C3 Framework
    • D2.Civ.14.9-12.Analyze historical, contemporary, and emerging means of changing societies, promoting the common good, and protecting rights.
    • D2.Civ.13.9-12.Evaluate public policies in terms of intended and unintended outcomes, and related consequences.
    • D2.Civ.10.9-12.Analyze the impact and the appropriate roles of personal interests and perspectives on the application of civic virtues, democratic principles, constitutional rights, and human rights.
    • D2.Civ.9.9-12.Use appropriate deliberative processes in multiple settings.
    • D2.Civ.4.9-12.Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.
  • Common Core State Standards
    • CCSS.ELA-LITERACY.RH.11-12.9:Integrate information from diverse sources, both primary and secondary, into a coherent understanding of an idea or event, noting discrepancies among sources.
    • CCSS.ELA-LITERACY.RH.11-12.4:Determine the meaning of words and phrases as they are used in a text, including analyzing how an author uses and refines the meaning of a key term over the course of a text (e.g., how Madison defines faction in Federalist No. 10).
    • CCSS.ELA-LITERACY.RH.11-12.2:Determine the central ideas or information of a primary or secondary source; provide an accurate summary that makes clear the relationships among the key details and ideas.
    • CCSS.ELA-LITERACY.RH.11-12.1:Cite specific textual evidence to support analysis of primary and secondary sources, connecting insights gained from specific details to an understanding of the text as a whole.
Lesson Plan 2: Why Supreme Court Confirmations Have Become So Bitter (Mini Lesson)
Why Supreme Court Confirmations Have Become So Bitter
U.S. Supreme Court
Overview
▼

As President Biden makes his first Supreme Court nomination, he is hoping for bipartisan support for nominee Judge Ketanji Brown Jackson. Recent history of Supreme Court nominations have yielded bitter battles and guarded answers from nominees on their views of important legal issues.

Objectives
▼

Students will:

  • Examine the nomination and confirmation process for Supreme Court Justices.
  • Analyze how the nature of Supreme Court nominations have changed since the defeat of Robert Bork.
  • Critique the Advice and Consent process and debate the consequences of how confirmation hearings are currently conducted.
Essential questions
▼
  • What are the steps in the nomination process for Supreme Court Justices? What constitutional actors are involved?
  • How did Bork’s performance in Senate Judiciary hearings contribute to his defeat? How did the results of Bork’s hearings impact this process for future nominees?
Additional resources
▼
Standards
▼

C-3 Framework Standards for Social Studies:

  • D1.4.9-12. Explain how supporting questions contribute to an inquiry and how, through engaging source work, new compelling and supporting questions emerge. 
  • D2.Civ.1.9-12. Distinguish the powers and responsibilities of local, state, tribal, national, and international civic and political institutions.
  • D2.Civ.3.9-12. Analyze the impact of constitutions, laws, treaties, and international agreements on the maintenance of national and international order.
  • D2.Civ.4.9-12. Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.
  • D2.Civ.13.9-12. Evaluate public policies in terms of intended and unintended outcomes, and related consequences. 
  • D2.His.1.9-12. Evaluate how historical events and developments were shaped by unique circumstances of time and place as well as broader historical contexts.
  • D2.His.5.9-12. Analyze how historical contexts shaped and continue to shape people’s perspectives.
  • D2.His.7.9-12. Explain how the perspectives of people in the present shape interpretations of the past.

AP U.S. Government and Politics Course Framework:

  • Disciplinary Practice 1.b. Explain political principles, institutions, processes, policies, and behaviors.
  • Unit 1: PMI-1.A.1: The powers allocated to Congress, the president, and the courts demonstrate the separation of powers and checks and balances features of the U.S. Constitution.
  • Unit 2: CON-4.A.1: Presidents use powers and perform functions of the office to accomplish a policy agenda.
  • Unit 2: CON-4.B.2: Senate confirmation is an important check on appointment powers, but the president’s longest lasting influence lies in life-tenured judicial appointments.
  • Unit 2: CON-5: The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice.
  • Unit 2: CON-5.C: Explain how other branches in the government can limit the Supreme Court’s power.
    • CON-5.C.1: Restrictions on the Supreme Court are represented by Judicial appointments and confirmations.