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World

The Weird World of Vetting Supreme Court Nominations

Facial hair, pot and video rentals: It's all fair game when the nation's highest court is up for grabs

Judges under scrutiny, Photo: The Washington Post
By The News Whatsapp Twitter Facebook Share
2 years ago

CATHERINE HO

THE WASHINGTON POST

From a “weird” beard to past pot smoking, the history of the Supreme Court nominee vetting process is littered with colorful — and at times obscure — personal details that can nonetheless damage a nominee’s prospects of getting confirmed.

Opposition researchers, “counter-researchers” (those sympathetic to the nominee) and journalists are relentlessly thorough, leaving no stone unturned.

Tom Korologos, the “sherpa” who guided Antonin Scalia, William Rehnquist and Robert Bork in their confirmation hearings, used to prep his candidates by asking up front: “What is your nightmare question you don’t want them to ask? You better have an answer for it, because they’re going to ask it.”

“They parse every civil association speech, every article you ever wrote for law review, everything you ever said,” said Korologos, now an adviser at the law firm DLA Piper.

What is your nightmare question you don’t want them to ask? You better have an answer for it, because they’re going to ask it.”

-Tom Korologos, Supreme Court confirmation consultant

Today, opposition researchers and counter-researchers are poring over the record of Judge Merrick Garland, President Obama’s nominee to replace Scalia on the Supreme Court. The opposition is being led by the GOP-aligned America Rising Squared and the conservative legal group Judicial Crisis Network. The latter has spent $4 million on ads aimed at blocking Garland’s confirmation.

Aggressive political campaigning against Supreme Court nominees reached new heights with the nomination of Bork in 1987, creating the term “Borked,” meaning to be defeated by one’s political enemies.

“Everything that Robert Bork ever said or wrote was examined in great detail,” said Ralph Neas, former executive director of the Leadership Conference on Civil and Human Rights. Neas chaired a coalition to block Bork’s confirmation. “You’re talking thousands of hours. The research material would fill a room.”

The Leadership Conference had staffers working around the clock for four months in the summer and early fall of 1987. A task force ultimately compiled what they referred to as the “Book of Bork” — a lengthy collection and analysis of Bork’s judicial record that they then shared with every senator. They pushed hard to frame Bork’s judicial philosophy as a threat to equal and reproductive rights.

Bork, whose confirmation was rejected by the Senate, was scrutinized for everything from his facial hair — in one hearing, Sen. Howell Heflin, D-Alaska, asked Bork whether he would like to offer “an explanation relative to the beard” — to his choice of video rentals — a then-reporter for the Washington City Paper obtained a copy of Bork’s rentals from a Washington video store, which prompted Congress to pass the Video Privacy Protection Act in 1988.

Such details, however trivial, have an impact because people start focusing on them, Korologos said.

During Bork’s confirmation hearings, the judge’s critics accused him of “confirmation conversion” — changing his opinions on constitutional issues from when he was a circuit judge to when he became a Supreme Court nominee — as he sparred with Sen. Arlen Specter, R-Pennsylvania, over the original intent of the framers of the Constitution. It was around that time that questions about his beard arose, Korologos said.

Merrick Garland is pictured in the front row, fourth from the right, in a 1977 yearbook photo of the Harvard Law Review, where he was one of its four article editors. Photo courtesy of Harvard Law School Yearbook

Supreme Court nomination Merrick Garland (front row, fourth from the right) is currently having his life inspected with a fine tooth comb. Here, a 1977 yearbook photo of the Harvard Law Review, where he was one of its four article editors. Photo courtesy of Harvard Law School Yearbook

“The weird beard he had, it came up in the middle of this. . . . People came to me and said: ‘He’s got to shave his beard. He looks stupid,’ ” Korologos said. “I said: ‘Bob, yesterday there was a picture of you in the paper with a beard. Today it’ll be without the beard. It’s the ultimate confirmation conversion.’ ”

Douglas Ginsburg was nominated to the Supreme Court by President Ronald Reagan in 1987, shortly after the Senate voted against Bork’s confirmation. Ginsburg asked that his name be withdrawn from contention after reports surfaced that he had used marijuana in the 1960s and ’70s as a college student and while teaching at Harvard Law.

“They gather at a room somewhere and dig up any research they can find — they call people, they call the schoolteacher, they call his college,” Korologos said of opposition researchers. “That happened to Ginsburg. Someone said he had smoked pot.”

After Reagan nominated William Rehnquist to serve as chief justice in 1986, it was discovered that the deed on Rehnquist’s vacation home in Vermont contained a covenant that barred the sale or lease of the property to Jewish people.

A deed on Rehnquist’s former Arizona home similarly prohibited the sale or lease to nonwhite people. Upon closer examination, such covenants were widespread but unenforceable under a 1948 Supreme Court decision, and many home buyers were unaware of such restrictions, the New York Times reported in 1986.

Rehnquist was questioned about the restrictions by Sens. Edward M. Kennedy, D-Massachusetts, and Howard Metzenbaum, D-Ohio. He testified that he was unaware of the covenants and would act to remove them. A review of the records showed that his signature did not appear on either deed.

“That caused a ruckus until they went and looked it up,” Korologos said. “Some senators had the same deed on their house.”

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