Bull Durham & Supreme Court Politics
How the best sports movie of all time relates to what I often write about.
Last week I spent time thinking about two things, the movie “Bull Durham” and calls to pack the Supreme Court, amid other proposals to “reform” an institution whose critics consider it to have become illegitimate. What do these subjects have in common? Not much, to be frank, other than in a tendentious English-major way that I could exercise poetic license to conjure. But there is one key part of the 1988 romantic comedy that resonates with my old-school conception of the high court as protector of the rule of law while the political world spins out of control. That part is, of course, Crash Davis’s (Kevin Costner) speech about what he believes in:
Well, I believe in the soul, the cock, the pussy, the small of a woman’s back, the hanging curve ball, high fiber, good scotch, that the novels of Susan Sontag are self-indulgent, overrated crap. I believe Lee Harvey Oswald acted alone. I believe there ought to be a constitutional amendment outlawing Astroturf and the designated hitter. I believe in the sweet spot, soft-core pornography, opening your presents Christmas morning rather than Christmas Eve and I believe in long, slow, deep, soft, wet kisses that last three days.
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Amen, brother—though the original script referred to Thomas Pynchon instead of Sontag, which is a tidbit I learned from director Ron Shelton’s magisterial new book, The Church of Baseball: The Making of Bull Durham. Sports Illustrated once called Bull Durham the best sports movie of all time, which I think is right—it has to be in anyone’s top five—but, unlike most sports movies, it’s not really about the sport itself. There’s no championship that the minor-league Durham Bulls are working towards, no competition for a starting spot, no big game. It’s a book about relationships and a slice of American life in the late 20th century that just happens to be told through the lives of baseball players.
The film stuck with me for a similar reason to why I’ve devoted the last few years of my life studying the role that politics has played in the Supreme Court’s functioning and especially judicial confirmation battles. All the tensions that erupted into open unrest since the end of an epic term that most notably saw the overturning of Roe v. Wade are a microcosm of the toxic pathologies we see elsewhere in our governance and public discourse. Just as Bull Durham isn’t so much about baseball as a reflection on broader society, so is the Supreme Court’s supposed politicization a reflection of several trends whereby divergent interpretive theories map onto partisan preferences at a time when the parties are more ideologically sorted than at least the Civil War, if not ever.
I go into that dynamic in the introduction to my book, Supreme Disorder, which I now present to you here. —IS
When Justice Charles Evans Whittaker retired in March 1962 after just over five years on the Supreme Court, John F. Kennedy had his first opportunity to shape the high court. The youthful president selected a man of his own generation, Byron White. White had met JFK in England while on a Rhodes Scholarship—after having been runner-up for the Heisman Trophy and spending a year as the highest-paid player in the NFL—and the two became fast friends.
White was a vigorous 44 and serving as the deputy attorney general under Robert F. Kennedy. Kennedy formally nominated him on April 3, 1962. Eight days later, White had his confirmation hearing, a quick 90 minutes including introductions and supporting testimony from various bar association officials (during which the nominee doodled on his notepad). What questioning there was largely concerned the nominee’s storied football career; “Whizzer” White was surely the last person to play a professional sport while attending Yale Law School. The judiciary committee unanimously approved him, and later that day so did the Senate as a whole, on a voice vote. My, how times have changed.
The battle to confirm Brett Kavanaugh showed that the Supreme Court is now part of the same toxic cloud that envelops all of the nation’s public discourse. Ironically, Kavanaugh was nominated in part because he was thought to be a safe pick, with a long public career that had been vetted numerous times. He was firmly part of the legal establishment, specifically its conservative mainstream, and had displayed a political caginess that made some on the right worry that he would be too much like John Roberts rather than Antonin Scalia or Clarence Thomas. As it turned out, of course, 11th-hour sexual assault allegations transformed what was already a contentious process into a partisan Rorschach test. All told, Kavanaugh faced a smear campaign unlike any seen since Robert Bork.
Senate Democrats had warned President Reagan that nominating Bork—a judge on the D.C. Circuit after a storied academic and government career—to the Supreme Court would provoke a fight unlike any he had faced, even after Scalia had been confirmed unanimously the year before. And so, on the very day that Reagan nevertheless announced Bork as his pick, Ted Kennedy went to the Senate floor to denounce “Robert Bork’s America” as a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”
It went downhill from there, as the brusk Bork refused to adopt the now well-worn strategy of talking a lot without saying anything. A few years later, Ruth Bader Ginsburg would refine that tactic into a “pincer movement,” refusing to comment on specific fact patterns because they might come before the Court, and then also refusing to discuss general constitutional principles because “a judge could deal in specifics only.”
Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on Supreme Court nominations until 1916, a tumultuous year that witnessed the first Jewish nominee and the resignation of a justice to run against a sitting president. It wouldn’t be until 1938 that a nominee testified at his own hearing. In 1962, the part of Byron White’s hearing where the nominee himself testified lasted less than 15 minutes.
But while the confirmation process may not have always been the spectacle it is today, nominations to the highest court were often contentious political struggles. For the republic’s first century, confirmation battles, including withdrawn and postponed nominations, or those upon which the Senate failed to act—Merrick Garland was by no means unprecedented—were a fairly regular occurrence.
George Washington himself had a chief justice nominee rejected by the Senate: John Rutledge, who had lost Federalist support for his opposition to the Jay Treaty. James Madison, the “Father of the Constitution,” also had a nominee rejected. And John Quincy Adams, who himself had declined a nomination from Madison, had a nominee “postponed indefinitely” during the lame duck period after Andrew Jackson had stopped his bid for reelection.
Jackson then had a nominee thwarted, but a change in Senate composition allowed Roger Taney to become chief justice a year later—and eventually author Dred Scott. John Tyler, who assumed the presidency in 1841 after the one-month presidency of William Henry Harrison, never lived down his nickname of “His Accidency.” Congressional Whigs disputed his legitimacy and their policy disagreements extended to judicial nominations: the Senate rejected or declined to act on four Tyler nominees (three of them twice) before finally confirming one.
Indeed, most 19th-century presidents had trouble filling seats on the high court. Millard Fillmore was prevented from filling a vacancy that arose during his tenure, as was James Buchanan. Congressional elimination of Supreme Court seats stopped Andrew Johnson from replacing the two justices who died during his presidency. It took Ulysses Grant seven tries to fill three seats. Grover Cleveland ran into senatorial traditions regarding seats reserved for certain states—which he overcame only by nominating a sitting senator.
In the 20th century, Presidents Harding, Hoover, Eisenhower, Johnson, Nixon, and Reagan all had failed nominations—although Harding and Ike got their picks confirmed after resubmitting their names. FDR never had anyone rejected—although his court-packing plan was rejected both in Congress and at the polls. And LBJ’s proposed elevation of Justice Abe Fortas led to the only successful filibuster of a Supreme Court nominee, a bipartisan one over ethical concerns, which wasn’t even a true filibuster because Fortas never had a majority of pledged votes. Douglas Ginsburg withdrew before President Reagan could send his name to the Senate for having smoked marijuana with his law students.
Then of course there’s Merrick Garland, the first nomination the Senate allowed to expire since 1881—but then the last time a Senate controlled by the party opposite to the president confirmed a nominee to a vacancy arising in a presidential election year was 1888. As we now know, Senate Majority Leader Mitch McConnell’s gamble worked: not only did it not hurt vulnerable senators running for reelection, but the vacancy held Republicans together and provided the margin for Donald Trump in key states. Trump rewarded his electoral coalition with the nomination of Neil Gorsuch, who was confirmed only after the Senate decided, on a party-line vote, to exercise the “nuclear option” and remove filibusters.
Opportunities for obstruction have continued—pushed down to blue slips, cloture votes, and other arcane parliamentary procedures—even as control of the Senate remains by far the most important aspect of the whole endeavor. The elimination of the filibuster for Supreme Court nominees was the natural culmination of a tit-for-tat escalation by both parties.
More significantly, by filibustering Gorsuch, Democrats destroyed their leverage over more consequential vacancies. Moderate Republican senators wouldn’t have gone for a “nuclear option” to seat Kavanaugh in place of Anthony Kennedy, but they didn’t face that dilemma. And they didn’t face it when President Trump got the chance to replace Justice Ruth Bader Ginsburg, which was an even bigger shift.
Given the battles we saw over Gorsuch, Kavanaugh, and Amy Coney Barrett [and now Ketanji Brown Jackson] too many people now think of the justices in partisan terms. That’s too bad, but not a surprise when contrasting methods of constitutional and statutory interpretation now largely track identification with parties that are more ideologically sorted than ever.
Why all the focus on one office, however high? If Secretary of State Mike Pompeo had died or resigned in the last year of the Trump presidency, it certainly would’ve been a big deal, but there’s no doubt that the slot would’ve been filled if someone with appropriate credentials were nominated. Even a vacancy in the vice presidency wouldn’t have lasted unduly long.
But of course executive appointments expire at the end of the presidential term, while judicial appointments usually outlast any president. A president has few constitutional powers more important than appointing judges. Justice Scalia served nearly 30 years on the high court, giving President Reagan’s legal agenda a bridge to the 21st century. A big ruling on nonprofit-donor disclosures was made in April 2016 by a district judge appointed by Lyndon Johnson.
Pundits always argue that judicial nominations should be among voters’ primary considerations when choosing a president. Well, the Supreme Court’s future truly did hang in the balance in 2016. That election was so consequential in part because people knew that its winner would have the first chance in more than 25 years to shift the Court’s ideological balance. Indeed, the Court stood starkly split on many issues: campaign finance, the Second Amendment, religious liberty, and regulatory power, to name a few. If Hillary Clinton had been able to appoint a progressive jurist—even a “moderate” one—these policy areas would be headed in a substantially different direction.
And that goes just as much if not more for the lower courts, which decide 50,000 cases annually even as the Supreme Court hears fewer and fewer. Every four-year term, the president appoints about a fifth of the judiciary. On Inauguration Day in January 2017, there were already 105 vacancies—and that rose to more than 150 before a tweak in Senate debate rules sped up confirmations. To put it another way, when Obama took office, one of the 13 appellate circuit courts had a majority of judges appointed by Democratic presidents; after his 55 appointments, nine did. Trump partly reversed that, “flipping” three circuits and getting a record 30 circuit judges confirmed in his first two years—about the same number as Bush and Obama combined at that point in their presidencies. And 54 overall, better than anyone in one term except Jimmy Carter, for whom Congress created many new judgeships to fill, as a sort of consolation for not having any Supreme Court vacancies on his watch.
Even if politics has always been part of the process, and even if more justices were rejected in our country’s first century than in its second, we still feel something is now different. Confirmation hearings are the only time that judges go toe-to-toe with politicians—and that’s definitely a different gauntlet than even President Tyler’s nominees ran. So is it all about TV and Twitter, the 24-hour news cycle, and the viral video? Is it that legal issues have become more ideologically divisive?
No, the nomination and confirmation process—an interplay among president, Senate, and outside stakeholders—hasn’t somehow changed beyond the Framers’ recognition, and political rhetoric was as nasty in 1822 as it is in 2022. Even the “novel” use of filibusters is anything but. All these parts of the current system that we don’t like are symptoms of a larger phenomenon: as government has grown, so have the laws that courts interpret, and their reach over ever more of our lives.
Senatorial brinksmanship is symptomatic of a larger problem that began long before Kavanaugh, Garland, Thomas, or even Bork: the courts’ self-corruption, aiding and abetting the expansion of federal power, then shifting that power away from the people’s legislative representatives and toward executive branch administrative agencies.
And the Supreme Court is also called upon to decide, often by a one-vote margin, massive social controversies, ranging from abortion and affirmative action to gun rights and same-sex marriage. The judiciary affects public policy more than it ever did—and those decisions increasingly turn on the party of the president who nominated the judge or justice.
So as the courts play more of a role in the political process, of course the judicial nomination and confirmation processes are going to be more fraught with partisan considerations. This wasn’t as much of a problem when partisanship meant rewarding your cronies. But it’s a modern phenomenon for our parties to be both ideologically sorted and polarized, and thus for judges nominated by presidents from different parties to have markedly different constitutional visions.
Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, changing the size of the Court, setting new rules for the confirmation process, and more.
But before we get to all that, let’s see how we got to where we are.
This book proceeds in three parts. The first part you can think of as “the past,” roughly George Washington through Lyndon Johnson and the rejection of Justice Abe Fortas’s nomination to be chief justice. The second part is “the present,” the modern age of judicial politics, covering developments on the court from Richard Nixon to now. That includes the “big four” controversies over Robert Bork, Clarence Thomas, the Antonin Scalia vacancy, and Brett Kavanaugh, but also the escalating battles over the lower courts. The third part is “the future,” diagnosing problems and offering solutions.
It turns out that politicization of judicial nominations isn’t a new phenomenon—the Founders themselves lived it—but do we have to settle for politics as usual?
To read more, buy Supreme Disorder, one of the Wall Street Journal’s Best Books of 2021—now out in paperback with a new epilogue.