This is a transcript of Episode 65 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s Supreme Court podcast. I am Dahlia Lithwick. I cover the courts and the law for Slate. This week, Capitol Hill is blooming with its usual spring flora, and the gentle scent of filibuster is perfuming the air as well. Senate Democrats seem to be marshaling their energy behind an effort to block Judge Neil Gorsuch from being seated at the high court. Senate Republicans are promising to respond with a rules change called the “nuclear option” that would allow for Supreme Court confirmation with a simple majority vote. Republicans are vowing that Gorsuch will be confirmed on April 7, next Friday, with or without the Democrats behind it.
This week, we’re going to talk a little bit about the history of confirmation votes with the co-author of a book on Senate confirmation hearings, but first, there have been big developments on the criminal justice front at the Supreme Court this week, starting with a decision in a death penalty case to overturn a capital punishment sentence in which the State of Texas used outdated standards for diagnosing intellectual disability for the defendant. The court also heard a big case on Tuesday, turning on the question of whether those subject to deportation as a result of bad legal advice have a constitutional claim about ineffective assistance of counsel.
On Wednesday, the court heard a pair of criminal law cases that have all the hallmarks of a John Grisham novel, if the novel was written in the 1980s. Turner v. U.S. and Overton v. U.S. reopen an incredibly fact-specific question around a brutal murder of a young woman in Washington, D.C., in 1984. Eight men have cumulatively served 232 years in prison for what may have effectively been the Washington, D.C., version of the Central Park jogger case. This week, lawyers for those men tried to convince the justices of the Supreme Court that prosecutors in that case suppressed crucial exculpatory evidence over 30 years ago. Joining us now is Thomas L. Dybdahl. He’s writing a book about these murders and was in the courtroom on Wednesday. Welcome to Amicus, Tom.
Thomas L. Dybdahl: Thank you.
Lithwick: Tom, you’ve been involved in this case since 2008, but I need you to take us all the way back to 1984 to help us understand the unbelievable drama around the murder of Catherine Fuller in Washington, D.C.
Dybdahl: Well, the case really gripped the community, because she was a tiny woman, 99 pounds, the mother of six children, frail … but well known in the community, and she was just brutally murdered. She was kicked and beaten, and then as kind of a final coup de grâce, she was sodomized with a pipe. It was just shoved up 11 or 12 inches. The medical examiner said it was the worst injury she had ever seen in a homicide victim. So you can imagine the community feeling, and then the police decided very quickly it was a gang attack, and they ended up arresting 17 young people for the crime and charging them. So you can imagine with all of that brutality, the number of defendants, that it was just a case that mesmerized the whole city.
Lithwick: And am I right to say that this is of a piece with certain criminal justice trends we were talking about in the ’80s that had to do with gangs of wild young men who were completely out of control? I mean, this was very much of that time period, right?
Dybdahl: Yes, it was just the very beginning of it, and there were articles around this then, that gangs were now becoming a big problem in D.C. where they hadn’t been before, and suggesting the community was in great fear, and that’s why the case was difficult to solve, because people didn’t come forward, because they were afraid of these just incredibly wild young thugs who would do anything, and this was a prime example of that.
Lithwick: Tom, before we dive into the case, can you tell us how it is that you came to be involved in this litigation?
Dybdahl: Yes. I was working at the Public Defender Service for the District of Columbia, where this had happened, but I had no involvement in the case and wasn’t even in D.C. at the time. But a friend of mine, who was involved in the case at Georgetown because the Innocence Project had finally gotten involved, 20-some years after the crime, told me about it, and I was just fascinated. I started looking into it while I was still working, and then when I retired in 2013, I pretty much dived into it with all of my free time.
Lithwick: And you’re writing a book about it right now. There was a piece that you wrote for the Marshall Project that basically outlined where your thinking is on this case, correct?
Dybdahl: Yes, and to be clear, once I got into the case, I came to believe, and absolutely believe that none of these men who were arrested—none of the 17, and then none of the eight who were convicted—had anything to do with the crime, that it was not a gang attack at all. It was, rather, one man in particular, with an accomplice, who was already basically a twisted sexual psychopath, who committed the crime.
Lithwick: The claim that the defendants are making here is that the prosecutors have known for a long time a bunch of exculpatory facts that they didn’t disclose. Can you help us understand the timeline of what the prosecutors knew and when they knew it, and when it became discovered?
Dybdahl: Sure. There were a number of items of evidence that were hidden that we felt should’ve been disclosed, but the two key ones were about alternate scenarios for the crime. About a month after the murder, a woman named Amy Davis came forward and said she had seen a man named James Blue in the alley kill and attack Catherine Fuller. So a lieutenant wrote up the report and sent it to Homicide. Well, it was, as the prosecutors said, lost in the shuffle. They didn’t find that until August, which was then two months before the trial, so they didn’t really investigate very well, and they certainly didn’t want to think that was true.
The McMillan evidence pointed to a man named James McMillan, who already had a violent history against women, who lived there in the block that backed right on the alley where the body was, and who was identified by four witnesses as being on the scene by the garage, running away from the garage when the police came with something under his coat. And the object that was used to sodomize Fuller was never found, so it’s unclear, because they never really investigated him, exactly when they knew the guy running from the garage with something under his coat was McMillan. It was probably in late spring or early summer. And, again, by then, they were all over with their theory, they’d made all these arrests, they were far down [inaudible], so, at that point, the pressures were against disclosing something that might hurt their case.
Lithwick: So, Tom, let’s talk about Brady v. Maryland. Our listeners probably vaguely know that there’s a prosecutorial obligation since 1963 to turn over exculpatory evidence, and there’re three prongs of the Brady test. Do you want to go set the table and let us understand which part of Brady is in question here?
Dybdahl: Sure. To have a Brady violation, there are three parts. First, there has to be information that was exculpatory. Secondly, it has to be information that was not disclosed to the defense. But third, even if it was not disclosed, it has to be shown to be material in order to be a constitutional violation and require a reversal of the convictions, and that’s where everything gets hashed out, is whether or not it’s material, which generally has been defined as: You don’t have to prove that the verdict would have been different, but that it casts doubt on the validity of the verdict. So no one disagrees here that there was exculpatory evidence and that it was hidden; the only issue is, was it material? If the defense had had that information and been able to use it, might the outcome have been different, and does it kind of cast a cloud of doubt over the verdicts?
Lithwick: OK, so now I need you to explain to our listeners why you feel this is a really, as you said, tricky case: there’s no physical evidence, the prosecution relied on three witnesses. What were the other failings of the case? What were the things that the prosecutors could have done that would have made, in your view, a material difference to the outcome?
Dybdahl: Well, in defense, we always say, “Whoever tells the best story wins.” Well, the government had this powerful, riveting story of the crime, this tiny woman just being horribly brutalized. The defense had no story. I wasn’t there, but I’m not quite sure where I was, because these guys were arrested weeks or months later, they couldn’t remember those few minutes, they lived in the area, so they essentially had no story. And in fact, the defense lawyers, as part of trying to defend their own particular clients, deliberately pointed at others. Some of them even said, “You know this guy, you know this other guy, you know this guy was there, but my client wasn’t.”
So the defense had nothing, really, to work with, and there was a whole string of evidence that would have implicated McMillan. There was no civilian eyewitness who saw a single one of the defendants on the crime scene that day, not one. They were all … it’s like the Central Park Five, kind of, like a couple of the guys flipped and confessed, and then they dragged up—after 400 interviews—they dragged up two or three other 13-, 14-, 16-year-olds who claimed to see part of it. So that was really the evidence.
Lithwick: So let’s talk about McMillan for a minute, because I think that probably the riveting moment in the case is a colloquy between Anthony Kennedy and John Williams, who’s arguing on behalf of the defendants, and Kennedy cannot understand why, if McMillan had committed this murder, he would be still hanging out at the scene all the time later. I think this goes to how incredibly fact-specific this whole conversation was. Let’s have a listen in.
Anthony Kennedy: If you commit a murder, you don’t hang around for an hour.
John Williams: Well, we think that there would be two reasons. And first, he didn’t hang around for an hour; he was only at the crime scene for approximately five minutes, according to—
Kennedy: But it was, it was, it was 30 to 60 minutes later.
Williams: We would say it was most likely 30 minutes later that he came back in. We would say that there are two apparent reasons why he would have come back in. The first and most likely is, remember, Mr. McMillan was hiding something under his jacket, and the object used to commit the sodomy was never found. Defense counsel would have argued to the jury that what he was trying to do was come back to the alley and deposit the object used to commit the sodomy back in the garage. The other reason he might have returned is he mistakenly believed that he had left some identifying information about himself inside that garage, and he wanted to remove it.
But the last point, Justice Kennedy, and I think this is critically important, if you ask any criminal defense lawyer, especially one defending a case involving a violent crime, if he’s happy with a defense that depends on his client being clever, they would tell you they are not. Criminals are not clever, and this court reasoned in Kyles v. Whitley that you should not minimize the importance of alternative perpetrator evidence merely because it would require you to believe that the alternative perpetrator was shrewd and sophisticated.
Lithwick: So that’s an amazing moment, right? Here is Williams theorizing that maybe McMillan hung around because, quote, “criminals aren’t clever.” Tom, let me just ask you, is it really appropriate, all these years later, right—this happened in 1984—for lawyers and justices of the Supreme Court to be trying to reconstruct a crime scene in a neighborhood that doesn’t look anything like what it looked like, for a bunch of defendants who have all been in jail? I mean, it just seems like, how can a court figure out these factual questions in this granular way?
Dybdahl: Well, it is extremely difficult, and I think, though, that that should be put to the government’s fault that they’re the ones that hid the information, and if it hadn’t been for an intrepid Washington Post reporter named Patrice Gaines, this information would never have come to light. It’s only through the efforts of this reporter, and then the Innocence Project, and new lawyers who had deep pockets and hired investigators, that they came up with this information that had been hidden by the prosecution that pointed to two other possible perpetrators and a completely different scenario. In my view, the evidence in the case, which is limited, but points much more strongly at these people than any of the defendants.
Lithwick: One of the questions that underlies this entire litigation is whether it should be up to prosecutors to determine what is material for Brady purposes, or if they should just have to turn over everything that’s exculpatory. It’s not on them to determine whether this would have made a difference, right? And that, in some sense, is why Brady remains unclear in the lower courts today?
Dybdahl: Absolutely. We, from a defense standpoint, consider the fact that the prosecutor is the gatekeeper to be always problematic. And to be fair, I understand it’s a very difficult challenge. I think in this case, the prosecutor discovered this McMillan evidence fairly well into the case. They’d already arrested 17 people. They already had this theory that had been reported in the press everywhere about gang attacks. And then suddenly, this information comes up, and he realized, “If I turn over this information, that could blow my whole case out of the water. And I believe these guys did it.” I think he, at least at some point, genuinely believed that.
So all of the pressures against him are saying, “Well, I can just say, ‘I don’t really think this is material.’ I don’t think the jury would go for this, so I’m just going to hide it.” It’d be very hard to just turn it over after all that work, and suddenly be like “I’m sabotaging my own case,” but that’s not the way it should be. He should have just said, “This evidence is clearly exculpatory, if it’s believed.” That’s not his decision to make, whether it’s believable. It should have been disclosed. But the pressures on prosecutors, and particularly in a high-profile case like this, are incredibly strong to make his case, because he said afterwards, “We really were struggling to find the evidence to make our case,” and it could have gone either way. The jurors deliberated nine days, so any fairly small amount of information pointing in a different direction could have turned the whole case.
Lithwick: And it’s your view that even if one juror could have felt slightly differently, that would be enough to make a material difference? I mean, it sounds as though, when these defendants lost in the lower courts, the test was much higher than that, right?
Dybdahl: Absolutely. But, I mean, if the question, as it should be, is “Does it cast doubt over the verdict?” might it have been different? If one juror had some doubts about that and refused to vote for conviction, they wouldn’t have been convicted. It requires all 12. So the fact that it took them nine days, and the fact that the comments afterwards were “We just wanted to get this over with, Christmas was coming.” They said they took 50 votes on the last two defendants. It was not a slam-dunk case at all for the government. So it’s easy to see how even something quite small that doesn’t seem earthshaking would have easily changed or affected the outcome of the case.
Lithwick: Tom, I want you to take off your defense lawyer hat for one second and put on your journalist hat, because one of the things that I think you’re saying that’s so interesting about this litigation is the ways in which journalism is both the cause of and the solution to the problem here. In other words, there is this tsunami of journalistic reporting that this was a gang, and this is of a piece of the Central Park jogging—you know, just this theme of young boys out of control in the inner cities, and that sweeps up the entire narrative. As you say, that becomes the story. But then, as you pointed out earlier, there’s also a Washington Post reporter who is the reason that all of this exculpatory evidence surfaces. So I guess I just want to ask about that tension between when journalism creates a false narrative of a crime and when journalism actually solves, in some sense, parts of the crime that the process missed.
Dybdahl: Yes, it is ironic in this case that, I think, the coverage by both the Post and the Washington Times was not good coverage of the crime. They swallowed hook, line, and sinker the prosecution’s story, and it made great stories. There were many front-page, many Section A stories about the crime. Virtually every day during the trial, there was a story, and people were reading about it because it was an exciting story. But no one wanted to say, “Wait a minute, is this really a gang?” The Post actually ran one piece interviewing people in the neighborhood who said, “There’s no 8th and H gang, this is just a bunch of neighborhood guys who hang out in the park.” But that got swept away in the narrative, and I think, to some extent, then the media was not as aggressive as they might be now at trying to look further, and I think that was unfortunate.
But then, it was a reporter—who was actually in the courtroom when the verdicts were announced—who was so troubled by it and bothered by it that 10 years later, she said, “Can I take a look back?” and spent six years researching it, and she’s the reason, in the end, that all of this came out. So the press, exactly, played both, I think, fanning the flames without necessarily intending to, and wanting—people wanted this to be solved, wanted these guys to be convicted so they could put it behind them, and then reviving the case in recent years.
Lithwick: And, Tom, is it relevant in your view that even though the defendants in this case have lost at every single layer of scrutiny, that the court agreed to take this case and actually narrowed the Brady question? Does that mean that the Supreme Court simply wants to correct an error that happened in 1984?
Dybdahl: Well, I wish I knew. I really have no insight, and I think that court watchers were surprised they took this case, and the speculation was that they took it to correct that. But there was some hope early on that they might look more broadly and use this case as example of the kind of abuses that have crept in with Brady, and that maybe we should have some clearer guideline. But it certainly looks now, if anything, that it was just to correct the errors in this case, and this case is unusual not so much in the kind of information that was withheld, but just the scope, the fact that there were eight men convicted, that they’ve all spent decades in prison—one died there, one is out, the others are still there—but just the sheer scope, the sheer brutality of the crime, and the publicity have made it into a higher profile case.
Lithwick: Tom, you came to this case in 2008, not in 1984, when it originally was beginning to burgeon into the case that it would become. Can you help us understand the difference between Chris Turner and the other men who were convicted in this litigation, and why Chris Turner, specifically, is actually free today when the other men are still serving time?
Dybdahl: Yes. In the original sentencing, because he had absolutely no criminal record, had never been arrested or involved in anything, and because he had very positive community references—he was active in the local clubs and service centers and so on—the judge gave him a lesser sentence. He got 27 and a half years to life; all of the others got 35 years to life. When he was in prison, he had an exemplary record, was very close to getting his college degree, and had recommendations and positive letters from Bureau of Prison officials who are not even supposed to get involved. So he is the only person I know of who has gotten parole in this way without admitting guilt, but he was released in 2010 after serving about 25 and a half years.
Lithwick: Tell us what he hopes to achieve from this, I think, what we all could describe as a Hail Mary run at the U.S. Supreme Court all these years later?
Dybdahl: Sure. I talked to him for quite a while afterwards, and he was grateful that they took the case. He said it’s kind of surreal to see the defining event of your life dissected by the justices of the Supreme Court. But for him, he is out of prison, it would be kind of a sweet vindication, but it wouldn’t change a lot about his life. But he’s particularly hoping it would affect the six who are still in prison and could still be there for years or even decades, because none of them, in all of these years, has admitted to having any part in the crime, which means they get no chance for early parole, because you have to, quote, “be rehabilitated by taking responsibility,” which means admitting you did it, so they will not, even now, trade their integrity for their freedom. But his biggest hope is that if the convictions are reversed, then these other guys, who have suffered so long in prison, would be released.
Lithwick: Tom Dybdahl has degrees in theology, journalism, and law. He is writing a book on the Catherine Fuller murder of 1984. Tom, thank you so much for joining us on the podcast today.
Dybdahl: Thank you for having me.
Lithwick: Last week’s confirmation hearing for Neil Gorsuch was, in addition to being a spectacular piece of political theater, also kind of an exercise in nostalgia for confirmations past. At many times in the hearing, various senators, and then the nominee himself, were waxing poetic about some golden era of confirmation hearings where nominees held forth on substantive doctrine, and also civil hearing lasted just a matter of minutes. Here is Senate Democrat Patrick Leahy longing for the bygone years when nominees actually answered the questions before them.
Patrick Leahy: You have been very hesitant to even talk about various Supreme Court precedents. I know that Chief Justice Roberts, when he was before us, he said he agreed with Griswold and Brown. Justice Alito said he agreed with Hamdi and Eisenstadt.
Lithwick: And, just by way of contrast, here is Judge Neil Gorsuch, paradoxically longing for the opposite thing, the good old days of the Byron White hearing, where no substantive questions were asked, and everybody was polite and respectful.
Neil Gorsuch: Senator, there’s a lot about the confirmation process today that I regret. A lot.
Sen. Sheldon Whitehouse: Yeah?
Gorsuch: A lot. When Byron White sat here, it was 90 minutes. He was through this body in two weeks, and he smoked cigarettes while he gave his testimony. There’s a great deal about this process I regret.
Lithwick: So which of these two stories is true? Or are they both just ridiculously rose-colored in retrospect? On today’s show, we wanted to talk about the history of confirmation hearings to try to get a sense of whether these events have really gotten worse, have really gotten more shallow, or have really gotten more political and ugly, or if they’ve always been some variation of substanceless and mean. To help us understand all this is Professor Lori Ringhand. She teaches at the University of Georgia Law School, and her 2013 book, Supreme Court Confirmation Hearings and Constitutional Change, she co-authored with Paul M. Collins, is pretty much the Bible of confirmation hearings past. So, Lori, welcome to Amicus.
Lori Ringhand: Thank you. I’m glad to be here.
Lithwick: One of the things we heard so much about last week is how confirmation hearings didn’t even happen for a long time, but then when they started, they were so brief and clubby and perfunctory, and they were lovely and friendly. When did the modern four-day reality Punch & Judy big-ticket hearing really start, in your view, or, you can’t carbon-date it like that?
Ringhand: Well, see, the practice of the nominee him or herself coming before the Senate Judiciary Committee and taking unrestricted questions in an open format, that really only began with Felix Frankfurter in 1939, and became cemented as part of the process in the 1950s. So that practice is about 70 years old.
Lithwick: But the first confirmation hearing, in some form, was in 1916, right? That was for Woodrow Wilson’s tap of Louis Brandeis, and he didn’t show up, right?
Ringhand: No, there had been hearings prior to Felix Frankfurter’s. Some of them were open to the public; some of them were not. But before Frankfurter, no nominee had testified, except with a couple of occasions where nominees had come to answer very specific questions, and so that they were contained in their scope. Senators wanted to ask about a particular—like the Teapot Dome Scandal, with one of our nominees. They had very precise, cabined questioning. So the process has changed in that way. It’s hard to think about whether the process is better or worse, or more nasty, or different, because it’s always been episodically nasty, but the way that has manifested itself in terms of what the public sees has changed a lot over time.
So if you’re measuring what the process used to be by clubbiness, it certainly used to be clubby. You know, the Senate was what it was. It was very much a closed club of gentlemen performing functions largely behind closed doors. And that’s obviously changed, and the process has changed a lot along with that. But just because the Senate was operating out of the public eye in the first 100 years of our history of Supreme Court confirmation hearings doesn’t mean that it always ran smoothly. If you measure success by statistics, there were actually a higher percentage of nominees rejected by the Senate in our first 100 years than there have been in the 100 years since. And they were rejected for partisan political reasons. You know, George Washington had one of his nominees rejected by the Senate. So it’s not new for senators to care about who sits on the court, and to recognize that politics and partisanship are tools that are going to—
Lithwick: So what’s new, Lori, if I’m hearing you right, is the performance of caring? Like, the spectacle of having to emote?
Ringhand: Well, I would push back a bit against the word performance, because I don’t think this is a pointless exercise. What has changed is it’s become a more public process, and that’s changed, I think, for some really good reasons. When you look at what’s happened in our country, and in terms of political accountability and membership in the political community, that’s changed a lot since the 1930s. You know, we’ve gone through We have direct election of senators; that didn’t used to be the case. We have the enfranchisement of women. We’ve had the, finally effecting the right to vote and be enfranchised of African Americans in the South.
That’s grown the populations that senators appropriately need to consider themselves democratically accountable to, so of course that greater democratization of the American population has impacted this process, just like it’s impacted everything else. You can’t just make your deals in back rooms anymore, and expect that as long as, you know, the 300 or 400 people back in your Senate district who basically drive your election process are OK, then everything’s going to be great. We have opened up politics in ways that are good, and that have affected this process just like they’ve affected everything else.
Lithwick: So, then, let me try to develop here. I’m going to pull on the string of something you’re saying, which is, first confirmation, Louis Brandeis, Jewish, and we want to talk about the clients he’s represented. Other turning point, Felix Frankfurter, Jewish again, want to talk about the clients he’s represented. Thurgood Marshall, right? 1967. Also, I think, an outsider. Let’s just play for a minute, we’ve got some amazing audio of LBJ talking to his Attorney General Ramsey Clark, in 1967, about whether we can nominate this civil rights icon who is clearly not a member of the club. Let’s have a listen.
Lyndon Johnson: Where did all this wave of stuff go around, that he is disappointing as solicitor general, he’s lazy and shiftless and didn’t spend much time doing his homework?
Ramsey Clark: I think it’s, uh—
Johnson: That some candidates that didn’t want him, or some—
Clark: Some combination of opposition plus—
Johnson: It’s mostly—
Clark: He doesn’t fit the mold, and he’s not a Yale man, and that kind of stuff, you know? Just a big, easygoing, very humane-type person.
Lithwick: So there we have it, Lori. We’re hearing LBJ say, “Where did these ideas that he’s shiftless and lazy come from?” and Ramsey Clark answering, “Well, you know, he’s not a Yale man, he’s just easygoing.” So I’m not even going to ask you to touch what that was about, but I want you to maybe speculate on whether there is this burgeoning theme here, which is, yeah, it’s polite and clubby, until somebody who’s not a member of the club is in the hot seat, and then the hearings get ugly. And let’s be really clear, the Thurgood Marshall exchanges with Strom Thurmond during his own confirmation hearing were a low-water mark for ugly, right?
Ringhand: Right. The Marshall hearings were just appalling. Unfortunately, we don’t have audio of them, but when you read the transcripts, the hostility and sarcasm of many of the questioning senators, it just drips off the page. They are clearly developing themes, trying to establish that he’s unqualified, ignorant, will just be the tool of William Brennan, and it’s really a disgrace to the U.S. Senate, what they attempted to do to Justice Marshall in those hearings.
And it’s interesting, your point about outsiders, because as I mentioned earlier, Felix Frankfurter was the first nominee to take open, unrestricted questions from the Senate Judiciary Committee in a completely public forum, and his confirmation hearing was quite a show, because it featured this string of very angry public witnesses who were very overt, and perfectly happy to say on the record in the Senate hearing room that their opposition to Felix Frankfurter’s appointment was because he was Jewish. And there was no subtlety to this. Felix Frankfurter came to the United States as an immigrant—he was only eight years old, he didn’t speak English—and the theme that these public witnesses were hitting over and over and over again is “He is not one of us. We can’t trust him. He doesn’t understand American values.”
And it was really rough, and the president’s counselors told Frankfurter eventually, they said, “You need to come and testify. You need to stand up and basically proclaim yourself a proud American,” which is exactly what he did. And then, of course, he went through. He went through on a voice vote, which was much more common, and the voice-voting practice can mask some of the contestedness of these early hearing. But it was right out there. There was no subtlety about what was going on in that hearing.
Lithwick: And, Lori, that was in 1939, correct?
Ringhand: Frankfurter was in 1939.
Lithwick: So, Lori, one of the reasons that standards change for Felix Frankfurter, if I’m not mistaken, is actually because of the catastrophe that was the Hugo Black speedy confirmation, and forgetting to ask about little things like his KKK membership. Can you talk for a minute about that?
Ringhand: The Hugo Black story is fascinating, and it’s part of why we had open hearings on Justice Frankfurter. Hugo Black, when he was nominated to the court, was a sitting senator, so he was put through the Senate process really quickly. I think it was five days from the time he was nominated to the time he was fully appointed, and that’s obviously extraordinarily fast. And what came out shortly after his confirmation was finalized was that he had accepted, in his younger days, a membership in the Klan, and apparently had never revoked that. And when this broke, it was huge news. People were outraged. The senators were scrambling to try to explain why they hadn’t had a hearing process or any sort of public forum to explore that issue, and to explain to their voters why they were confirming this person with this history.
And the senators at the time, the Senate Judiciary Committee chair, vowed at the time that they wouldn’t do that again, that for the next nomination, they would open up the process. And that’s part of why, in 1939, when Felix Frankfurter was named to the court, we had this open-hearing process, where public members came and testified, senators asked questions, and Felix Frankfurter himself testified under oath, in public, and took unrestricted questions from the senators.
Lithwick: And, Lori, am I right that that’s also why we have this rather extraordinary moment in 1937 where we actually have a radio address from Hugo Black, in which he says, in the first iteration of “What’s in my heart, America,” that he’s not a super-racist KKK guy after all?
Ringhand: Yeah, it’s a remarkable audio.
Lithwick: Let’s have a listen.
Hugo Black: I did join the Klan. I later resigned. I never rejoined. I completely discontinued any association with the organization. I have never resumed it, and never expect to do so. At no meeting of any organization—social, political, or fraternal—have I ever indicated the slightest departure from my steadfast faith in the unfettered right of every American to follow his conscience in matters of religion. I number among my friends many members of the colored race. I have watched the progress of its numbers with sympathy and admiration.
Lithwick: So, Lori, let’s talk about what happens. What does this mean, when someone starts to say, “Well, OK, now I guess I have to explain to you that I’m really not a racist”?
Ringhand: In terms of evaluating what’s in your heart, it’s such an interesting way to approach that question. What was interesting to me, in part, was he talks about how, of course, people have a right to question this. He’s not questioning, in other words, he’s not pushing back against the idea that people should and do care about this. And that’s in part because we do understand—and, in some ways, have always understood—what Supreme Court justices do. Supreme Court justices decide constitutional cases in which there simply aren’t crisp, clear constitutionally correct answers. They simply have to exercise some discretion. And different theories of interpretation call that discretion different things—originalists like to refer to it as “construction” rather than “interpretation”—but they do it, and we’ve always known that they do it. And part of this process is helping the American people understand how a justice is likely to use that discretion, and, perhaps more pertinently, where they’re likely to exercise it.
One of the things that we see when we look at nominee responsiveness at these hearings is there’s kind of become a little bit of a litany about the types, the cases that nominees say, “Yup, I’m OK with that,” and then the ones that they refuse to talk about. And I think it’s important that nominees go through that process, because what they’re doing when they say, “Yes, that’s a great precedent,” they all affirm Brown. Everyone says Brown is a wonderful case, as it is, of course. And when they go through that process, what they’re signaling is “I consider that settled. Maybe it used to be controversial, but I accept the consensus. That’s not controversial anymore; we’re not going back there.”
Lithwick: So this is a good time to play Antonin Scalia, maybe, who seems to not even want to acknowledge that Marbury v. Madison is settled. Let’s have a listen, just to point out kind of what a badass he really was.
Arlen Specter: I believe you testified earlier that a decision as old as Marbury v. Madison, 1803, which does establish the basic power of the Supreme Court to decide the final interpretation of the Constitution, is a settled issue, as far as you’re concerned?
Antonin Scalia: I said, Senator, it’s a pillar of our system. I don’t want to I don’t want to say that anything is a settled issue, as far as I’m concerned. If somebody wants to come in and challenge Marbury v. Madison, I’ll listen to them, but it is obviously a pillar of our current system.
Lithwick: So that’s Arlen Specter and Justice Scalia. Talk a little bit about Scalia’s skittishness there, Lori.
Ringhand: Yeah, well, Scalia’s definitely an outlier on this. All of his contemporaries were much more willing to affirm the kind of American canon of constitutional law cases, so what we see from Scalia there is actually quite extraordinary. And I think the only reason he was actually able to get away with that, if you remember, he was nominated at the same time that Justice Rehnquist was being elevated to Chief Justice, and the Democrats at the time made a very strategic decision to aim their fire at the Rehnquist nomination, not the Scalia nomination. I don’t think he could have gotten away with what he just did there if his nomination had been more the target of the political fight.
Lithwick: So I want to talk a little bit about television, because as I understand it, TV is introduced in, when, 1981, Sandra Day O’Connor’s confirmation hearings?
Ringhand: Yup. Justice O’Connor was the first hearing to be broadcast on TV.
Lithwick: And again, she’s the first woman—outsider—so maybe, again, that explains why deeper scrutiny happens. But also, let’s just play O’Connor, just going back to this “what’s in your heart” question, because here she is being questioned by Strom Thurmond on her views about abortion, and she’s willing to answer about her own personal views.
Strom Thurmond: Judge O’Connor, there’s been much discussion about your views on the subject of abortion. Would you discuss your philosophy on abortion, both personal and judicial, and explain your actions as a state senator in Arizona on certain specific matters? First, your 1970 committee vote in favor of House Bill 20, which would have repealed Arizona’s felony statutes on abortion.
Sandra Day O’Connor: My own view in the area of abortion is that I am opposed to it, as a matter of birth control or otherwise. The subject of abortion is a valid one, in my view, for legislative action subject to any constitutional restraints or limitations.
Lithwick: Lori, how stunning is it today to hear O’Connor actually talking about her own personal beliefs and moral values? That’s really, really different from what we get now, right?
Ringhand: Well, it’s interesting, because what we see is nominees have a limited ability to run away from their own record, so someone like O’Connor, who had that history, someone like Justice Ginsburg, who also had, prior to her nomination, been fairly forthright about her opinions on these matters, there’s not always benefit, as we saw with Judge Bork, to try to pretend that you don’t believe things that you’ve said in public before. That just doesn’t work very well for nominees, so there’s a little bit of management that goes into deciding what you have to own at the hearings, and what you can avoid. It’s also interesting, we sometimes forget the history of this. When Justice O’Connor was nominated, the Republican Party—not President Reagan, but the Republican Party—was still flirting with, you know, kind of big-tent-ism on abortion, and that hadn’t fully jelled as an absolute requirement for Republican nominees.
Lithwick: Lori, do you want to talk for a minute about the impact that adding television to this mix eventually brings about? I mean, O’Connor, really, now it’s a reality show, right?
Ringhand: See, you’re so negative on this process. I don’t think it’s that bad. So, O’Connor’s hearing was televised both because we now had the 24-hour-news networks, and kind of the interest driven by that—I think it was C-SPAN that was up and running in time for her hearings—and also, of course, though, her nomination was a win for President Reagan. He had promised as a candidate to appoint the first woman to the Supreme Court, so she was a little bit of a pop star for them in that regard, and I think there was a lot of public interest in her hearing because she was the first woman nominated and appointed to the court. And the fact that that public interest was captured in a televised format isn’t bad. Again, it increases democratic accessibility to the process.
And, as I said earlier, the process has become more, not less substantive. Senators are asking more questions; they’re asking questions about precedent. Nominees, despite our public rhetoric about this, are actually fairly forthcoming. Their level of forthcomingness has not changed over the years; it’s basically the same that it’s been since the hearings began. So I don’t think it’s a bad thing that the people see this process. At the very least, they see these hotly contested political issues play out and be talked about in the language of constitutional law, and I think that’s really good.
Lithwick: I’m totally chastened. I’m not cynical anymore. I want to ask you, Lori, about the so-called Ginsburg rule, because it got a lot of play again last week. Let’s listen to Ruth Bader Ginsburg at her confirmation hearings, famously promising what she would and wouldn’t talk about.
Ruth Bader Ginsburg: A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.
Lithwick: Slowest talker ever. Lori, does Ginsburg follow the Ginsburg rule?
Ringhand: Justice Ginsburg here, she’s a victim of her own ability to turn a phrase, because she said, much more succinctly and memorably, what every single nominee sitting on that chair has said. I was rereading the Potter Stewart hearings recently, from 1959, and they had exactly the same conversation. Interestingly, they were having it about Brown. But there was this long back-and-forth where the nominee is saying, “I’m sorry, it really wouldn’t be appropriate for me to answer that question. You shouldn’t vote for me conditioned on how you think I’m going to vote in any individual issue.” The nominee, Potter Stewart says that, “I can’t talk about my personal feelings.” The senators have this long back-and-forth about whether it’s even appropriate to ask questions specifically about Brown. None of this is new; Justice Ginsburg just said it better than anybody else, and that’s come back to haunt her. So the so-called Ginsburg rule is really, really poorly named. Justice Ginsburg was not less responsive at her hearings than other nominees have been. And, again, the trend line on nominee responsiveness really hasn’t changed.
Lithwick: Lori Ringhand teaches at the University of Georgia Law School. Her 2013 book, Supreme Court Confirmation Hearings and Constitutional Change, with Paul M. Collins, is a must-read if you’re trying to figure out whether confirmation hearings suck as bad as I think they do. Lori, thank you for joining us on Amicus.
Ringhand: Thank you for having me.
Lithwick: And that is going to do it for today’s filibuster-scented edition of Amicus. We’d love to hear your thoughts. Our email is firstname.lastname@example.org. We are on Facebook at Facebook.com/amicuspodcast. Leave us a comment there, and if you haven’t already, you can leave one on our page in the iTunes Store. We love your feedback, we appreciate your support, and we really enjoy your letters. Remember, if you’ve missed any of our recent episodes, you can find all of them on our show page. That is at Slate.com/amicus. If you are a Slate Plus member, you’ll also find transcripts of our shows there, but please know they take a few days to post. Big thanks, as always, to the Virginia Foundation for the Humanities, where our show is taped, and a thanks to the LBJ Presidential Library for the amazing audio of the phone call between President Johnson and Ramsey Clark about the possible nomination of Thurgood Marshall to the Supreme Court.