BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield.
JOE BIDEN: So you've told me nothing, Judge. With all due respect, you've not look, this is it's kind of interesting, this kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.
BOB GARFIELD: That was Delaware Democrat Joe Biden expressing, with all due respect, his utter frustration with the hearings wherein the Senate inspects Supreme Court nominees and with John Roberts, the nominee now in the spotlight. But Biden's was a Democratic view. Senator Jon Kyl, an Arizona Republican, was apparently enthralled.
SENATOR JON KYL: It is illuminating to me, as a student of constitutional law and someone who's practiced before the court. I've learned a lot, and therefore to those who on the outside say, well, it looks like a lot of senators posturing, if they're listening very closely to your answers I think that they will find a great deal of meat, of knowledge of the application of your wisdom to how you approach judging.
BOB GARFIELD: Be they Kabuki dancer or law students, in the end it was the senators who took the stage this week as much as Roberts. Was it ever thus? Or were confirmation hearings less theatrical before the television age? Perhaps, says David Yalof, Associate Professor of Constitutional Law at the University of Connecticut, but that doesn't mean that the nominees fared any better. In fact, he says, they fared worse.
DAVID YALOF: Really the fact that the presidency itself was much weaker back then contributed to the fact that the Senate [LAUGHS] had no problems giving his nominees a hard time. When you add up the end of the eighteenth and the nineteenth centuries, a quarter of the nominees were routinely rejected. Today, 12 of the last 14 [CHUCKLES] nominees have been confirmed.
BOB GARFIELD: One of the more famous struggles was back in 1916 with the nomination of Louis Brandeis. Now, he was Jewish and he was a noted trust buster and anti monopolist. But he was eventually confirmed and he became a legendary justice. How did that confirmation process play out in the press at the time?
DAVID YALOF: Well, it played out very differently because the nominee then did not testify. Testifying became routine beginning in the 1950s. Not only did Brandeis [CHUCKLES] not testify, when he was asked by reporters about his nomination he said, "No comment." So [CHUCKLES] it was really something that involved interest groups. It certainly involved the President and it involved the Senate. But the nominee [CHUCKLES] was, to some extent, a bystander in the process.
BOB GARFIELD: You mentioned that it wasn't until the 1950s, I guess, when Earl Warren was the Chief Justice, that nominees routinely started testifying on their own behalf at all.
DAVID YALOF: Certainly, the Warren Court contributed to this new and increased interest in the nominees. During those years, the Court was intimately involved in a lot of issues: race discrimination, defendants' rights, various things that they'd never been involved in before. And so what we saw by the end of the 1960s was an intense interest on the part of the Senate to put nominees through the wringer because they were either representing or opposed to what the Warren Court had done.
BOB GARFIELD: Let's fast forward to 1981. Ronald Reagan nominates Sandra Day O'Connor to the Supreme Court, and the Senate hearings are televised.
SEN. STROM THURMOND: Judge O'Connor, there has been much discussion about your views on the subject of abortion. Would you discuss your philosophy on abortion, both personal and judicial, and explain why
BOB GARFIELD: Why didn't the Supreme Court nomination process get TV's interest until, you know, the Reagan era? TV had broadcast the Watergate hearings, the Army McCarthy hearings.
DAVID YALOF: You know, I don't think that during that period the hearings themselves were considered very dramatic. G. Harold Carswell obviously testified in 1970, and he was ultimately rejected. But he wasn't rejected for anything he said at the hearings. [LAUGHS] He was rejected because of information that came out after the hearings about a controversial speech he'd given to a white supremacist rally much earlier in his career; the same thing with Clement Haynsworth who was rejected about financial conflicts and not anything he said. So I think that there really was a sense that these hearings would be relatively humdrum, relatively [LAUGHS] boring and very different, if you will, than hearings that might embarrass a political party or a presidency.
BOB GARFIELD: And then in 1987 there was Bork. Some say that Bork hung himself by being so foolish as to disclose his actual views in his testimony. But the left was trying to demonize him, and he had that sparse, creepy looking beard. Could it also be said that Robert Bork was a casualty of the TV era?
DAVID YALOF: I can tell you, Bob, that there was actually some talk in the White House prior to his testimony that maybe he should shave the beard [LAUGHS] on the theory that he would be a less imposing figure. [LAUGHTER] But I think that you're absolutely right about him being a casualty. And what you should know is that the interest groups did play a significant role in laying the foundation for him to be a casualty. By the time Bork had come to the hearings, there were some senators that were smelling blood and Bork engaged them.
MAN: Senator, that is if those charges were not so serious, the discrepancy between the evidence and what you say would be highly amusing. I have not asked that either the Congress nor the courts be neutral in the face of racial discrimination.
DAVID YALOF: The Bork nomination is what really kind of sent out the message to future [CHUCKLES] nominees: do not engage the Senate on issues.
BOB GARFIELD: Now if Bork got "Borked" for his views and the process was uncomfortable to watch, it was not nearly as uncomfortable as the Clarence Thomas hearings in 1991. That genuinely was a media circus. Has that affected the way John Roberts and all subsequent nominees are going to go through the process?
DAVID YALOF: Clarence Thomas actually didn't engage the Senate on issues in the first round of hearings. Remember, there were two rounds. And the first round prior to Professor Anita Hill's allegations of sexual harassment were strictly on the issues, and Clarence Thomas gave them nothing. Then came the allegation.
CLARENCE THOMAS: Senator, I believe that someone, some interest group I don't care who it is in combination came up with this story con - and used this process to destroy me.
DAVID YALOF: It's really not nominees that have reacted to what happened to Clarence Thomas, as much as the Senate. The Senate Judiciary Committee, after that, decided when there are these kinds of allegations we're going to hold them off the media, off the television; we're going to deal with them that way.
BOB GARFIELD: Let's talk then about John Roberts. In the weeks leading up to the hearings, he had dozens of meetings with individual senators who ostensibly asked him the same questions they're asking him now, raising the question, what's the point of the hearings themselves? I mean, they're just an opportunity for senators to showboat? And if so, who are they performing for [LAUGHS] - the public at large, their local constituencies, interest groups? Who?
DAVID YALOF: Well, I think all of the above. You should know that very often when Joe Biden is asking a question, he's as much sending a message to Orrin Hatch and to other Republicans on the Senate Judiciary Committee about what kind of treatment nominees in the future might get, as much as he is talking about John Roberts.
BOB GARFIELD: Well, I'm going to end this with a leading question.
DAVID YALOF: Uh oh. [LAUGHS]
BOB GARFIELD: Can we assume that the fact that John Roberts has Fred Thompson, former senator and actor, essentially his own PR handler, working with him at every stage of this process and that Roberts himself is, you know, a good looking, smooth talking guy with a minimal paper trail? Is it fair to say that this is the ultimate reflection of the mediazation of the deliberative process?
DAVID YALOF: John Roberts is definitely a product of this [LAUGHS] mediazation to the extent that he's a very, very fine advocate for [LAUGHS] his own cause on television. The few times where he really had an objection to the senators, he raised that objection in such a polite way it was almost very difficult for the senators to come right back at him. And, in fact, they've been a little bit demonized, the opponents of him. The senators obviously have to answer to their constituencies. They have to answer to interest groups. And to that extent the media, by creating a constant focus on this process, really puts a premium on nominees who look good on television and sound good on television. And senators are aware of that.
BOB GARFIELD: All right. Well, David, thanks very much.
DAVID YALOF: Thank you, Bob.
BOB GARFIELD: David Yalof is associate professor of Constitutional Law and Judicial Politics at the University of Connecticut.