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The Politics of Choosing Justices

President Bush's three recent Supreme Court nominations reveal the complications and motives involved when politicians choose the nation's top judges, legal observers say. Political science professor David Yalof is an expert on the history and evolution of the Supreme Court nomination process.


Other segments from the episode on November 14, 2005

Fresh Air with Terry Gross, November 14, 2005: Interview with David Yalof; Commentary on the folk singer, Sandy Denny.


DATE November 14, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A

Interview: David Yalof discusses the history and evolution of the
Supreme Court nomination process

This is FRESH AIR. I'm Terry Gross.

Republicans and Democrats and special interest groups on each side are gearing
up for Judge Samuel Alito's confirmation hearings. Have confirmation hearings
always been as politically charged and divisive as they are now? To put the
Alito confirmation hearings in context, we invited David Yalof. He's the
author of the 1999 book "Pursuit of Justices: Presidential Politics and the
Selection of Supreme Court Justices." He's an associate professor of
political science at the University of Connecticut.

The confirmation process, as we know it, is, you know, relatively new. How
recent is it, and what was it like in its earliest times?

Professor DAVID YALOF (University of Connecticut; Author, "Pursuit of
Justices"): Well, there were closed hearings on Supreme Court nominees in the
late 19th century. We don't know a lot about what happened in those hearings,
obviously; they were closed. We do know that sometimes nominees were
rejected. But to be honest with you, the nominees themselves didn't even show
up to those hearings. We didn't even have a nominee show up and testify
until, you know, you basically have to get into the early 20th century, when
you see nominees showing up.

Interest groups and their involvement, which is so regularly understood today
as a fact of life--that didn't really kick in until later in the 20th century.
So what--the hearings that we see for Supreme Court nominees today are really
starkly different concepts than hearings for Supreme Court nominations were
even 50 years ago.

GROSS: Well, why weren't the nominees at their own confirmation hearings? Is
it--you had the choice; you could go if you wanted to? Or was it just
understood they talk about you but you don't have to show up?

Prof. YALOF: I think that it was understood really on both sides. Why would
we need the nominee here? Some nominees even specifically said, `I wouldn't
want to go 'cause I wouldn't want to be put on trial.' And that was
classically put to the test when Louis Brandeis, himself quite a controversial
nominee, decided that when he was nominated in 1916 by President Woodrow
Wilson, he said, `I'm not showing up. Not only am I not showing up'--he
refused to even comment to newspapers or media at all about his nomination,
such a marked contrast to the way we deal with nominations today.

GROSS: And what was his reasons for not even commenting to the press?

Prof. YALOF: Well, quite honestly, very few nominees before him had commented
on the press, so he could rely on tradition. The types of nominees that would
even comment to Senate Judiciary Committee members--that itself was
unusual--were really nominees who anticipated that they might be in trouble.
And some of them might have lobbied individual members of the Senate Judiciary
Committee or even written a letter to the Senate Judiciary Committee on the
theory that, `I better say something in my defense or I'll be in trouble.' So
I think that lots of nominees would take the position, as Brandeis did, `I'm
not going to lobby on my behalf because that would imply that I need to be
defensive.' And most of them didn't even do that.

We really didn't get the classic image of a Supreme Court nominee going to the
Capitol, taking the oath and testifying until 1925, when Harlan Fiske Stone
was nominated to the court and really felt he needed to air some issues
regarding some incidents when he was an attorney general, and he aired them
and was confirmed. But even then it didn't become a regular process till the

GROSS: How have the nature of the questions changed, the questions that the
members of the Judiciary Committee ask the Supreme Court nominees?

Prof. YALOF: Well, it's obviously difficult for us to tell because they were
all closed hearings before early in the 20th century, and so we don't know
exactly. There's a famous quote from Abraham Lincoln, who was asked about his
own nominees to the court, and he very famously said, "You can ask them
anything they want, but if they answer you, we should despise them." And I
think that was the kind of approach that the questioning took. You could ask
them things, but they probably wouldn't respond. Certainly they wouldn't
respond if it any way gave any indication of how they might one day rule.

You really have to move further into the 20th century, really, into the 1950s,
'60s and especially the 1970s, when these hearings became the opportunity for
senators to very specifically ask, `What do you think of this issue? How
might you rule? What is your judging philosophy?' I mean, those kinds of
pointed questions are really part of the confirmation process only in the past

GROSS: You say one of the questions likely to be asked is: How would you
rule on a certain issue?

Prof. YALOF: Sure.

GROSS: But I thought that's the one subject that senators feel like they
can't really ask, though--they'll try to find out the answer but not by
directly asking it.

Prof. YALOF: Senators don't necessarily concede at all that they can't ask
that. Many senators believe they not only can ask it but that they have an
obligation to ask it, because they're not sure what this nominee might do and
that there are very important issues and constitutional disputes at stake. So
many senators take the firm position that they're obligated to ask those

I think the more controversial question is: What if the nominee doesn't
provide clear, unambiguous and direct answers to the questions? Could that
become a basis for rejecting the nominee? I think that is what's a little
more at stake and a little more controversial. But you will find really going
back even to the 1950s, when William Brennan went before the Senate Judiciary
Committee, and especially Abe Fortas in 1965, some very pointed questions or
criticisms about what they'd done before and what they might do again.

GROSS: What kind of questions?

Prof. YALOF: Well, Abe Fortas is a pretty famous example from 1968. He had
already been on the Supreme Court for three years, and he was now being
promoted by Lyndon Johnson to be chief justice. And really, his confirmation
hearings marked a change because it really became an instance for a referendum
on the Warren court as a whole. The previous eight years or six years or so,
the Warren court had had a clear majority and had advanced and extended
defendants' rights and free speech rights and various other rights far--much
farther than the court ever had in its history. And you had, by the time you
hit 1968, some very frustrated senators, angry about the Warren court,
especially some of the Southerners and many of the more conservative members.
And I think they saw Abe Fortas' hearings as an opportunity to really
criticize the Warren court and put Abe Fortas on trial and the Warren court on
trial. And of course, that's quite ironic because Abe Fortas hadn't even been
on the court for the entirety of the Warren court.

So very pointed questions about his opinions on some of the more controversial
cases. Gideon vs. Wainwright was a case he'd actually argued, not sat on
the court. Miranda vs. Arizona, those types of cases. Defendants' rights and
the rights of the accused were very much in play in 1968.

GROSS: And the outcome of his hearings was controversial, too.

Prof. YALOF: Yeah, well, he never got the vote on the merits. We hear a lot
today, `Every nominee deserves a vote on the merits.' Harriet Miers very
recently did not get a vote on the merits; her name was withdrawn. And
actually Abe Fortas didn't get a vote on the merits, either. There were some
procedural votes, and it became very clear that the votes were there to
filibuster his nomination if that's what it came to. And ultimately he and
Lyndon Johnson together made the decision that his name should be withdrawn
from consideration. So that kind of putting the Warren court on trial was

It should be said, however, Terry, that Abe Fortas was nominated in Lyndon
Johnson's final months in office. He was at that point a very defeated
president, and it's very hard for a president to get a nominee through when
they are beginning to see the end of their own term in office.

GROSS: Now the Fortas--the withdrawal of the Fortas nomination remains
controversial because some people consider that a filibuster since he was
withdrawing because, had he not been withdrawn, there would have been a
filibuster and he would have been defeated.

Prof. YALOF: Yeah. The...

GROSS: So some people would count that as a filibuster and other people say,
`No, no, there never really was a filibuster, so you can't count that as a
filibuster.' And that's controversial now because of the issue about whether
Democrats should have the right to filibuster if they don't like the
president's nominee, and...

Prof. YALOF: You're absolutely right. And there actually are two sides to
this debate. I don't think anybody who actually looks at the congressional
record and sees that there were cloture votes taken could possibly come to any
conclusion other than the fact that Abe Fortas was and his nomination was,
frankly, filibustered. I think, though, Senate Republicans today make the
argument--and this is perhaps true--that while Abe Fortas was filibustered,
there were not even 51 votes in the Senate to confirm him. And so their
argument would be that the Abe Fortas precedent doesn't represent a filibuster
precedent as it does today because the filibuster is being used by Senate
Democrats today--at least it has with lower-court nominees--to stop nominees
from getting votes when there are 51 votes in favor of their confirmation.

And so that's, I think, the distinction between Abe Fortas and today that
Senate Republicans try to make, and I think Senate Democrats respond, `A
filibuster is a filibuster.' So there really are two sides to that issue.
And the truth is, Terry, we don't know whether Abe Fortas would have gotten 51
votes on the floor, just as we don't know if Harriet Miers would have, because
ultimately only if you take the vote can you know.

GROSS: Well, the question of filibusters leads to the question of, what is
the role of the Senate? It says in the Constitution that the role of the
Senate when it comes to judicial nominees is to give advice and consent to the
president. And so, you know, interpretations of those words are very
far-ranging. What are some of the ways they've been interpreted historically?

Prof. YALOF: Well, I think earlier on in our country's history, if you go
back to presidents like Jefferson and Madison, they really made very, very
determined attempts to involve the Senate and individual senators in
particular in advising them on nominations. And I think that was particularly
true, Terry, because there was a sense that there needed to be a geographic
diversity on the court. All of the various Supreme Court justices during
this early period would, quote-unquote, "ride circuit." They would have to
actually go out to a circuit where they were the responsible justice and
actually serve on the Courts of Appeals there. They were the, quote-unquote,
"circuit justice." And so from that standpoint, geographic diversity was
considered important because you would want a Southern justice to represent
the Southern circuit. And as a result, Thomas Jefferson, just as an example,
would talk to senators and even House members from the South when he was
choosing a Supreme Court nominee, and that kind of geographic diversity was
considered important.

It should be said that no president felt obligated to talk to senators, and
some did and some didn't. But really, even if you move up into the 20th
century, some senators, particularly the more well known and revered senators,
would have very specific influence. Very famously, Theodore Roosevelt
appointed Oliver Wendell Holmes to the court in part because the Massachusetts
senator, Henry Cabot Lodge, you know, recommended and endorsed him. And
actually, Theodore Roosevelt regretted that nomination very soon afterwards
when Oliver Wendell Holmes didn't provide him the votes he wanted on antitrust

So that kind of advice has happened sporadically over the years. And in
fairness, it has continued to happen sporadically. A lot of people think that
the reason why Bill Clinton's two nominees sailed through relatively their own
confirmation processes was because Bill Clinton spoke not only to Democratic
senators but to Republican senators like Orrin Hatch, too, and got assurances
from them about Stephen Breyer and Ruth Bader Ginsburg. So this advice
function has been there.

GROSS: My guest is David Yalof, author of "Pursuit of Justices: Presidential
Politics and the Selection of Supreme Court Nominees." We'll talk more after
a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is David Yalof, author of the book, "Pursuit of Justices:
Presidential Politics and the Selection of Supreme Court Nominees." We're
looking at the history of Supreme Court confirmation hearings. When we left
off, we were talking about the Senate's role of advice and consent.

How much advice would you say President Bush--George W. Bush--has sought out
from the Senate?

Prof. YALOF: Well, from what we can tell, at least, you know, from the media
reports and the accounts, he did seek out Senate advice, at least when Sandra
Day O'Connor first announced her intention to retire, before choosing John
Roberts to replace her. That he did actually go to senators and talk to them,
senators from both sides of the aisle, and get their sense of who they might
support or not support. And again, when--after Chief Justice Rehnquist passed
away and John Roberts became the nominee for chief justice, when he started
looking for who might now replace Sandra Day O'Connor, again he spoke to many
of the senators. And we know that because Harry Reid, the Senate minority
leader for the Democrats, very specifically admits that he liked Harriet Miers
and told President Bush so. And a lot of people believe the reason President
Bush initially chose Harriet Miers is because he felt with a Senate minority
leader on his side, how could he lose? So we did see at least consultation
for those first two choices.

There is some complaint that Judge Alito was chosen very, very quickly without
that kind of consultation. But, of course, his name had been on earlier

GROSS: Well, you know, you said with the Senate minority leader behind him,
how could the president lose? And the way he lost with Harriet Miers was
through Republicans, through conservatives and the Republican Party. And, you
know, some people say Harriet Miers' nomination was scuttled because she
didn't have enough qualifications, but many people say it's because people on
the right weren't confidant enough that she would be far enough to the right
in her decisions.

Prof. YALOF: Well, I think both of those factors probably mattered. I think
they--many of the conservative Republicans--we heard from Sam Brownback and
Tom Coburn, among others--were interested in opposing her from the standpoint
of they weren't sure she was a true, blue ideological conservative. But
perhaps if her credentials had been impeccable and, you know, unimpeachable by
any means, they would not have been able to get the traction they got against
her. Because there were questions about her credentials, they were able to
combine their own ideological objections with questions about her credentials,
and the combination proved deadly.

But I should tell you, Terry, a lot of people think that if President Bush had
stayed behind Harriet Miers and not been willing to withdraw her and pushed it
through the whole process that he still would have gotten the 51 votes he
needed and that the Senate Democrats probably would not have filibustered. Of
course, we'll never know. But it is interesting that, even in this situation,
we don't know for sure whether all of the Senate Republicans or many of them
even were going to back down. And to be quite frank, I think President Bush's
mistake with Harriet Miers, if it can be called a mistake, is that he took for
granted that he would have all of the Senate Republicans' votes at a minimum.
And it turns out that no longer could they have thought that that was in the
bag once the Harriet Miers' nomination proceeded.

GROSS: How often has a nominee not even made it to the Judiciary Committee,
like Harriet Miers?

Prof. YALOF: Quite often, we have seen nominees withdrawn before actually get
to a particularly point to even get an up-down vote on the merits. We saw
it--John Tyler, in the early part of the 19th century, saw two of his
nominees, Edward King and John Read, that their nominations were postponed.
No action was taken. When presidents in particular have been weak, they often
find it difficult, not only to get their nominees confirmed, but sometimes to
even get that infamous up-down vote. More recently we saw Harriet Miers, but
just in 1987, Douglas Ginsburg, the DC Circuit Court of Appeals judge that
Ronald Reagan had nominated to replace Bork as a nominee, he--his name was
again withdrawn before a final vote on the merits because of the allegations
that he had smoked marijuana as a Harvard law professor. Not as a Harvard law
student, but as a Harvard law professor. So we do very often see nominations
withdrawn to avoid embarrassment and, more importantly from the president's
point of view, to get a better nominee up there in a hurry.

GROSS: There are definitely hot-button issues now that both senators and the
American public are measuring the nominees against, and I'm wondering how--is
that a recent phenomenon? That there's something the equivalent of the
abortion issue that Supreme Court nominees are measured against? Were there
hot-button issues in previous--in earlier eras?

Prof. YALOF: I mean, I think that there was a sense in general of ideology in
earlier eras. But in the era we have now with public hearings and public
attention to the Supreme Court nominations, I think it is unusual that there
would be just one issue or a handful of issues that could galvanize entire
nominations, that create this entire notion of litmus tests. I mean, I am
sure prior to the Civil War, the presidents appointing justices were thinking
about how might this person rule on issues having to do with slavery and
property rights, and I'm sure the Senate, when they were rejecting or
confirming those nominees, thought about that, too. But now we're talking
about very, very specific issues: the establishment clause, abortion. And
the notion that we might actually confirm or reject a nominee on the basis of
how they believe the court should rule on one or two issues, that is a
relatively modern phenomenon.

GROSS: And what about this, you know, in the process of the president
presenting to the public his nominee and in the confirmation hearing process,
there is often now an emphasis on the person's biography. How they rose to
the prominent position that they're in. You know, certainly in the case of
Clarence Thomas, like so much of the hearings were about, you know, how he
rose as an African-American man, and there's so much, like, biographically,
and we look for this kind of like heroic story. And is that a relatively
recent phenomenon?

Prof. YALOF: It is because when you're talking about biography, you're not
really selling Supreme Court nominees to senators. I think there are very few
senators who would be so touched by this--the biographical story of a nominee
that that might actually affect their confirmation. I think it's a great
story, though, to sell to the public. And when you have a controversial
nomination, if you can paint a Supreme Court nominee as kind of overcoming the
odds--Clarence Thomas from the little town of Pinpoint, Georgia--that's a
story that is--works well with the public. We actually saw a little of that
with Ruth Bader Ginsburg, who did not come from impoverished circumstances or
a small town but did overcome discrimination against her when she first became
a lawyer, and that was an important story, one that actually Bill Clinton
liked a lot. So these kinds of biographical factors do come in and they do

GROSS: David Yalof, is the author of the 1999 book, "Pursuit of Justices."
He's an association professor of political science at the University of
Connecticut. He'll be back in the second half of the show.

By the way, I want to remind you that tomorrow, our guest will be Bruce
Springsteen. I'm Terry Gross, and this is FRESH AIR.

(Soundbite of "Tenth Avenue Freeze-Out")

Mr. BRUCE SPRINGSTEEN: (Singing) Tear drops on the city. Bad scooter
searching for his groove. Seem like the whole world walking pretty and you
can't find the room to move. Well, everybody better move over, that's all.
'Cause I'm running on the bad side, and I got my back to the wall. Tenth
Avenue freeze-out. Tenth Avenue freeze-out. I was stranded in the jungle,
trying to take in all the heat they was givin'. The night is dark, but the
sidewalk's bright and lined with the light of the living. From a tenement
window a transistor blasts. Turn around the corner things got real quiet real
fast. I walked into a Tenth Avenue freeze-out. Tenth Avenue freeze-out. And
I'm all alone. I'm all alone. And I'm on my own. I on my own, and I can't
go home.

GROSS: This is FRESH AIR. I'm Terry Gross.

In preparation for the confirmation hearings of Judge Samuel Alito, we're
looking at the history of Supreme Court confirmation hearings. My guest is
David Yalof, author of the book "Pursuit of Justices: Presidential Politics
and the Selection of Supreme Court Nominees." He's an associate professor of
political science at the University of Connecticut.

How did the Clarence Thomas confirmation process and the Anita Hill hearings
change what subsequently happened, changed the future of the confirmation

Prof. YALOF: Well, I think the Senate Judiciary Committee and specifically
the senators on the Judiciary Committee were very bothered how it played out.
I think they sensed that the whole process got away from them, and perhaps it
did. You know, it's very easy to forget that there was a whole set of
hearings held on Clarence Thomas' nomination before Anita Hill's allegations
about possible or alleged sexual harassment came to the forefront, and he was
controversial on ideological grounds even before that happened. Many of the
senators were already making judgments. Then, of course, the Anita Hill
allegations were heard, and a whole new set of hearings took place and the
allegations and controversy that went back or forth.

In most instances, it actually just galvanized opinion, but froze it where it
had been already. Those who already were inclined to support his candidacy
believed him, and those who already were inclined to oppose him believed her.
In the end, you didn't get that many votes changed. But here's what you did
get: A sense from the Senate Judiciary Committee that they were going to try
not to let this ever happen again, and that is they are willing to go now into
closed session and hear very specific issues that might be a source of
embarrassment or might be questionable. Not absolutely everything has to be
aired publicly unless the Senate Judiciary Committee believes it's warranted.
We haven't had an instance like that since then, but it is important to say
that the Senate Judiciary Committee did not feel that that was its finest

GROSS: In 1987, President Reagan nominated Robert Bork for the Supreme Court.
That nomination was rejected. And how did that rejection affect the politics
surrounding Supreme Court nominees afterwards?

Prof. YALOF: Oh, it affected it a great deal. In the case of Robert Bork, we
had somebody who wasn't just a DC Court of Appeals judge for four or five
years; we had somebody who had been a law professor and had written very
controversial articles where he had literally targeted certain Warren court
precedents and other decisions as being illegitimate and poorly reasoned. And
when he came before the Senate Judiciary Committee in 1987, he didn't attempt
in any way to back down from the harsh criticism he'd leveled at many of those
decisions. He stood by them. He believed it was his role to educate the
senators, and he thought of the Senate Judiciary Committee--some people joked
at the time--as kind of one of his great law school classrooms from Yale.

The senators did not feel that way at all; they were very frustrated. And I
think ultimately, they determined that Robert Bork might be rejected not so
much because of his conservativism, although that was squarely there and in
the minds of everybody, but also because that conservatism was accompanied by,
in many of their minds, a closed mind. He wasn't open-minded about these

And so since the Robert Bork hearings, what we've seen are presidents
attempting to nominate individuals who are squarely compatible with them
ideologically. So you have seen President George H.W. Bush appoint
conservatives, and you have seen Bill Clinton appoint people who are more
liberal. But at the same time, these are individuals who don't wear their
ideologies on their sleeve; they haven't appeared to be crusading ideologues.
And in some instances, they've been stealth nominees, where it was impossible
to even tell what their ideology was. Now that worked with David Souter; it
didn't work well with Harriet Miers. And so we may actually be seeing a new
era here, where the stealth nominee, the reaction to Bork, isn't going to work
as well as it did in the case of David Souter.

GROSS: Now you're saying that in Bork's case, he was rejected because the
senators thought he had a closed mind. And...

Prof. YALOF: Well, it was a combination.

GROSS: A combination.

Prof. YALOF: Sure.

GROSS: And, you know, a lot of people felt that he was very ideologically
driven. Was it unusual for a candidate to be rejected because of their
ideology or perception that they had a closed mind as opposed to the fact that
they just didn't have the credentials for the job?

Prof. YALOF: Not at all. I mean, I think to some extent, ideology has driven
a lot of the rejection of Supreme Court nominees over the years. And this was
a subject, actually, of a great debate between Laurence Tribe, who wrote a
book called "God Save This Honorable Court," and David Danelski and other
scholars who kind of challenged what some of Laurence Tribe argued in that
particular book. We have seen ideology come into play in the decision to
reject and accept. I think, though, when you really want to take on a nominee
on the basis of his or her ideology, and that is the only means by which you
have to take that on, and if you're facing a president who's relatively
strong, maybe he has the Senate on his side, he has--his party controls the
Senate--when all of those factors are facing you, it is important to actually
try to accompany the complaints about ideology with something else. And I
think some of the senators in Bork's case were able to combine their
complaints about ideology with complaints about this, quote-unquote, "closed

GROSS: My guest is David Yalof, author of "Pursuit of Justices: Presidential
Politics and the Selection of Supreme Court Nominees."

We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is David Yalof, and he's an
associate professor of political science at the University of Connecticut and
author of the book, "Pursuit of Justices: Presidential Politics and the
Selection of Supreme Court Nominees."

For this book, you read a lot of presidential papers and looking for their
descriptions about how they went about selecting their nominee. Given what
you know historically about how presidents have gone about that process, where
do you think President Bush fits in? I know you haven't been able to read his
papers, but...

Prof. YALOF: No, not for a while. I don't think I'll be able to see that.

GROSS: A long while. But based on what you've seen, where would you say he
fits in his approach to choosing nominees?

Prof. YALOF: Well, I think in some ways, we already get the sense that
President George W. Bush has borrowed from the playbook of Ronald Reagan, and
certainly in the selection of lower court nominees, but potentially in the
selection of Supreme Court nominees as well. What Ronald Reagan did was
introduce to the process a willingness to invest considerable resources to
research candidates, to examine their opinions, to examine all their opinions,
their law reviews, their writings, to have a team of lawyers, whether it's in
the Justice Department, the White House or both, you know, going over all of
these opinions to try to get a sense of how this individual sees the law,
views issues and how this person might, frankly, rule once they got on the
United States Supreme Court. That kind of scouring of research wasn't
possible in the case of Harriet Miers because she'd never been a judge. But
in the case of John Roberts, who had been a judge and had been a lawyer in the
executive branch, and especially in the case of Judge Alito where you have 15
years of opinions to go over, I think that kind of exhaustive research which
Ronald Reagan introduced is probably the approach that George W. Bush has
taken as well. No surprises, at least from the administration's viewpoint.
We want to know everything we can about the nomination.

And I think, to some extent, that is a contrast from previous presidents who
very often didn't even try to determine what the individual might do on the
court, chose individuals because they were friends, or friends of friends or
because they knew them to be a great lawyer and trusted them. That kind of
more minimal review of a candidate's credentials, I think that that's part of
a time past, and I think President Bush's approach is probably going to be
copied by future administrations as well.

GROSS: Does this say something about how much more important the Supreme
Court is seen as being now?

Prof. YALOF: Well, I think to some extent, yes. It does say that the
Supreme Court, in a way that possibly we've only seen sporadically in past
eras of American history but now it almost seems continuous--the Supreme Court
has inserted itself, for better or worse, in many of the largest issues and
the most controversial issues of the day, whether it's abortion of school
prayer of federalism. These are issues that aren't going away, and the
Supreme Court is part of that decision-making process.

I think the way it used to be is there would be moments, there would be eras
where the Supreme Court would insert itself. Very famously, in the 1930s,
when the Supreme Court was striking down aspects of the New Deal as
unconstitutional. They certainly were part of the American debate and
dialogue at a very high level then. But then they kind of receded back and
away from the limelight for at least a few decades. What the Warren court did
was they brought the Supreme Court squarely into what David O'Brien has called
the storm center of American politics, and that's the way it continues to be,
and I think that's the way it's going to be for a while now. And so, from
that standpoint, yes, I think that it's hard to imagine Supreme Court nominees
and their hearings not continuing to get this high level of attention.

GROSS: One of the reasons why everybody feels there's so much at stake in
Supreme Court nominees is that the nominees when they become justices are
appointed for life, and the younger the justices the longer that life term
becomes. Why are Supreme Court justices appointed for life? I understand why
they're appointed and why they're not voted--because you don't want their
votes to be popularity contests. But why for life? Why was it agreed for
life as opposed to a 10-year term or a 15-year term?

Prof. YALOF: Well, Article III, Section I, says that the judges of both the
Supreme and inferior courts are supposed to hold their offices during good
behavior. So I think really, the nature of your question is not so much why
is that the way it is now, but why did the Founding Fathers--why did the
framers of the Constitution put that in? And I think when you read some of
the Federalist Papers, particularly those written by Alexander Hamilton, you
do get a sense of the importance of an independent judiciary, willing to make
decisions separate from considerations of how it might affect politics, how it
might improve the situation within the executive branch or within the
legislative branch.

I should, however, provide an important qualification here. And that is the
framers and writers of the Constitution, in particular Alexander Hamilton,
never imagined that the court would play this significant a role in American
politics. In fact, they referred--Alexander Hamilton referred to the Supreme
Court as being the least dangerous branch, and many people would tell you that
is no longer the case.

GROSS: As someone who has studied the Supreme Court justice selection
process, what are some of the things you are looking for now as this current
drama unfolds, you know, of the Judge Alito confirmation process?

Prof. YALOF: Well, we're--everybody is, I think, interested in how the
Senate Democrats are going to proceed in asking questions, and then
considering the ultimate strategy on their part, which is the filibuster.
You've already mentioned Clarence Thomas. Clarence Thomas was only confirmed
52-to-48. So in theory, if the Democrats had wanted to filibuster that
particular nomination, they could have done it easily, 'cause there were not
60 votes to confirm him. And so whether they will actually consider utilizing
the filibuster against Judge Alito, that's something that everybody is
certainly watching.

And more importantly, on what basis will they--if they do try the filibuster,
what basis will they use to justify it? Will it be strictly on ideology? We
have a president here, President George W. Bush, who campaigned promising that
he would appoint conservative justices in the mold of Scalia and Thomas, and
so theoretically if he does so, he's fulfilling a campaign promise. Can the
Senate Judiciary Committee Democrats stand in that way? Will they stand in
that way? Will they keep their ranks together?

And then, of course, we see the Republicans as well. There have been several
senators on the Republican side, Chafee from Rhode Island, and both of the
senators from Maine, have on occasion--rarely, but on occasion--voted against
President Bush's nominees to the lower courts. Can they be picked off? And
these kinds of dynamics we're going to see as the Judge Alito nomination
proceeds forward.

GROSS: If the Democrats filibuster Judge Alito thinking that he was too
conservative, and if that filibuster held, do you think that the next nominee
chosen by President Bush would likely be more conservative?

Prof. YALOF: Well, that is what history tells us. History tells us that when
a nominee is defeated by the opposition--and Richard Nixon faced that when
Clement Haynesworth was defeated, primarily by Democrats from the North and
the West. Certainly, President Reagan faced that when Robert Bork was
defeated, largely at the hands of Democrats. When that has happened in the
past, they have reacted, at least initially, by nominating somebody who may be
even more objectionable to the opposition. We don't want to reward the
opposition. And so, we saw that in the case of Nixon. He appointed G. Harold
Carswell, who was even more conservative than Clement Haynesworth. And we
frankly, saw that, at least initially with Ronald Reagan. He appointed Doug
Ginsburg from the DC Circuit who was considered quite conservative as well.
Both of those instances, though, do provide a caution, however, Terry, because
neither of those two replacements were confirmed as well.

So if the Democrats have the power to filibuster the first one on conservative
grounds, then a more conservative nominee might end up with the same fate.
And then you have a lot of interesting questions, because we have the 2006
midterm elections coming up. This issue might spill into that. How it would
affect that is impossible to tell, and President Bush would have to at that
point make some very difficult political judgements about how far he can
continue to push this. But I think there is something, though, in the fact
that Democrats know they had better take something that they can palatably
send--palbably defend to their constituents, because this president is
probably never going to appoint a liberal or somebody that they would, in
theory, like.

GROSS: So when judiciary hearings are in process and they're questioning a
Supreme Court nominee, do you stop everything else you're doing and just
watch? Like, do you still go to class and teach, or do you just, like,

Prof. YALOF: I do have to go to class...

GROSS: ...the hearings?

Prof. YALOF: ...and teach. I do have to go to class and teach, but I will
confess, Terry, that sometimes I actually show the hearings during class so
that I don't have to miss parts of them. I find that my students are
enthralled. If I can pick, you know, particular parts of the hearings,
there's some wonderful dialogue between Senator Joe Biden and John Roberts
that just--it gives so much interesting information about the nature of the
Supreme Court and how these confirmation hearings fit in, that I love to show
that to students.

Not only to students--I went up to Dartmouth College and spoke to a group of
senior citizens up there as part of their continuing education program, and
they--I showed them hearings. They wanted to see more. So I am one of those
sickos, Terry. I can sit there and watch C-SPAN. My family does not like me
on that Saturday after the hearings, 'cause I will sit there and watch a
replay of the hearings. I am not well on these issues. I do confess, I do
think it's drama and it's real drama.

But you know what the best part is? This is one of those few moments in
American politics where all three branches meet. We have a president's
nominee being judged by the Legislature, and it's going to have a direct
impact on the judiciary. You rarely get all three branches kind of jammed
together into one room with so much at stake, and that's why, as a student of
American politics, I find it impossible to look away.

GROSS: I want to thank you so much for talking with us.

Prof. YALOF: Thank you so much for having me, Terry.

GROSS: David Yalof is the author of "Pursuit of Justices: Presidential
Politics and the Selection of Supreme Court Nominees." He's an associate
professor of political science at the University of Connecticut.

Coming up, rock historian Ed Ward profiles Sandy Denny and considers her role
in the British folk rock scene of the '60s. This is FRESH AIR.

(Soundbite of music)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Profile: Folk singer, Sandy Denny

Like the Americans, the British had a folk rock revolution in the '60s, and
perhaps its signature voice was a young woman named Sandy Denny, whose short
career was filled with ups and downs. Rock historian Ed Ward has her story.

ED WARD reporting:

(Soundbite of unidentified Denny song)

Ms. SANDY DENNY: (Singing) Often she has gazed in castle windows all and
watched the daylight passing within that captive wall with no one to heed her

WARD: Alexandra Elene MacLean Denny was a nurse and art student when she
began going to folk clubs in the mid-'60s. Her voice attracted the attention
of a small folk label which paid her a pittance to record versions of standard
folk songs, and she found herself bitten by the show biz bug. She began
writing songs and hanging out with three musicians from London's Strawberry
Hill district, the Strawberry Hill Boys, with whom she recorded an album in
1968. By the time it was released, though, the band was known as the Strawbs,
and she'd been tapped to replace the female singer in one of Britain's top
up-and-coming bands, Fairport Convention.

At first, Fairport wasn't sure what they wanted to be exactly. They took
after the West Coast folk rock groups in America, recording Bob Dylan songs as
well as songs by their brilliant guitarist, Richard Thompson. On their second
album with Sandy Denny, they recorded a song of hers she'd done with the

(Soundbite from "Who Knows Where the Time Goes?")

Ms. DENNY: (Singing) Across the evening sky all the birds are leaving. But
how can they know it's time for them to go. Before the winter fire, I will
still be dreaming. I have no thought of time. For who knows where the time
goes? Who knows where the time goes?

WARD: "Who Knows Where the Time Goes?" brought Sandy Denny to fame. Others,
most notably Judy Collins, have attempted the song, but nobody's even come
close to the original. Perhaps realizing that they'd gone as far as they
could in this direction, Fairport turned towards traditional British folk
music on their next album, "Liege & Lief," a move no less controversial among
British folkies than Bob Dylan's going electric was to American ones. It even
got air play in America where "Tam Lin," a tale of death and enchantment, was
an FM-Radio standby.

(Soundbite from "Tam Lin")

Ms. DENNY: (Singing) I forbid you maidens, all that wear gold in your hair,
to travel to Carterhaugh, for you Tam Lin is there. None that go by
Carterhaugh, but they leave him a pledge, either their mantles of green or
else their maidenhead.

WARD: What "Liege & Lief" showed was that Sandy Denny was more than capable
of fronting an electric band, but her own preferences seemed to be elsewhere.
She'd taken up with a guitarist named Trevor Lucas, and as Fairport began
internal squabbling in 1970, she formed a band called Fotheringay with Lucas
to showcase her own material.

(Soundbite of unidentified Denny song)

Ms. DENNY: (Singing) My friend, I know you've suffered, although you are
still young. Why was it you who would not take her from anyone? Oh, it's
true. It's very true, he said. Some hard times I have known. But I have
always overcome them on my own.

WARD: Fotheringay lasted less than a year, long enough for Sandy to be
awarded best female vocalist in Melody Makers year-end poll. But by the time
she picked up the honor, she'd already broken the band up, and her next
appearance was on "Led Zeppelin IV's" song of "Evermore." The next six years
would see her recording four more albums of her own songs, which were
increasingly obscure and mostly played at a dirge tempo. She became thought
of as a cult artist, which apparently bothered her enough that along with her
now husband, Trevor Lucas, she rejoined Fairport in 1974 only to see the band
fall apart again the next year. In 1976, she went into the studio with a full
album's worth of songs, mostly based around the theme of her rocky marriage.
Using a full orchestra, Steve Winwood and a number of ex-Fairporters, she
knocked out the album in record time.

(Soundbite of "One Way Donkey Ride")

Ms. DENNY: (Singing) There you may stand in your splendor and jewels,
swaying me in both directions. One is the right one. The other for fools.
How do I make my selection? The city lies silent in the warm morning light,
the sand is as golden as saffron. Oasis of love, sweet water of life. God
bless the poor ones who have none, though they've tried.

WARD: Unfortunately, Lucas, who was producing, decided the album should have
some more mainstream material and had her record, among other things, Elton
John's "Candle In the Wind." The delay in getting the record out, compounded
by the birth of her daughter in July 1977, meant that the tour to promote it
had to wait until late fall. The record flopped. The marriage was strained.
In April 1978, Sandy was staying with a friend who came home on the 17th to
find her in a coma, having fallen down a flight of stairs. She never woke up,
and a great voice was silenced.

(Soundbite of "Farewell, Farewell")

Ms. DENNY: (Singing) Farewell, farewell to you who would hear. You lonely
travelers, all. The cold North wind will blow again. The winding road does
call. And will you never return to see...

GROSS: Ed Ward lives in Berlin.


GROSS: I'm Terry Gross.

(Soundbite of "Farewell, Farewell")

Ms. DENNY: (Singing) everyone. And will you never cut the cloth or
drink the light to be? And can you never swear a year to anyone but me? No,
I will never cut the cloth or drink the light to be. But I'll swear a year...
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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